‘the other refuses to disappear: it subsists, it persists, it is the hard bone on which reason breaks its teeth’1
(2008) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article
Table of contents
- I. Introduction
- II. Methodology
- III. The United States, Australian and Malaysian Experiences with Sodomy Laws
- IV. Comparative Dimensions
- V. Conclusion
Throughout history, views have been expressed in religious documents attempting to control non-procreative sexual activity. Sodom was a city in biblical times where the residents allegedly performed an assortment of sexual activities, the perpetration of which resulted in God’s obliteration of the city.2 Sodomy3 later became punishable as violative of religious order and was subject to reprimand by courts consisting of members of the clergy. The term homosexual did not emerge as a separate class of individuals in discourse until the 19th century. The sodomy laws were later used to target homosexual activity.4
The founding of the United Nations in the aftermath of the atrocities committed during the Second World War gave rise to an International Bill of Human Rights consisting of the Universal Declaration (a General Assembly resolution reflecting the consensus of the global community) and two important international treaties concerning political and civil rights as well as economic, social and cultural rights. This provided the preliminary basis for fostering the observance of basic human rights. The doctrine of crimes against humanity has come to symbolize human rights are a justifiable concern of the international community and the treatment of individuals within nation states is no longer just a matter of domestic concern. Emerging global norms of human rights have been frequently extended since the early beginnings of the human rights movement after the Second World War to address such issues as the elimination of all forms of racial discrimination and discrimination against women as well as torture.5 While prohibiting discrimination on the basis of sexual orientation is gaining greater currency as another potential extension of the growth of the international human rights movement, it is also encountering continued resistance in both international and domestic environments.
While sodomy laws have been repealed in many nations, such as the United States and Australia, as of May 2008, such laws still exist in 86 states which are members of the United Nations.6 The repeal of such laws in many countries is reflective of advances in the human rights movement globally and the increasing recognition that certain key principles of human rights, such as privacy, personal dignity, autonomy and equality, necessarily subsume within their reach the recognition of freedom with regard to Lesbian, Gay, Bisexual, Transgender and Intersex (‘LGBTI’) orientation.7
This article will explore the factors contributing to the ultimate repeal of these laws in the United States (‘US’) and Australia – as well as the factors militating against the repeal of such laws in Malaysia. This piece argues that the sodomy laws in Malaysia should be repealed for the same reasons they have ultimately been repealed in the US and Australia. The historical experiences with the sodomy laws in all three contexts provide an insight into the evolution of the human rights movement globally.
The repeal of such laws in the US and Australia is reflective of advances in the human rights movement globally and the growing recognition in international and domestic legislative and judicial fora that freedom to enjoy one’s own homosexuality is a key aspect of other basic fundamental human rights.8 In Australia, the Commonwealth Parliament passed legislation to comply with its obligations under the ICCPR as such obligations had been construed by the United Nations Human Rights Committee (‘UNHRC’) which resulted in the ultimate repeal of the sodomy laws in Tasmania, the last state in Australia to legalize homosexuality. International legal scholars and highly internationally respected members of the Bench, such as Australian High Court Justice Michael Kirby, have persuasively reasoned that a certain ‘transnational jurisprudence’ has materialized as one aspect of globalization in most ultimate courts throughout the globe. This has been manifested by greater recourse to international human rights law in the process of constitutional interpretation. Ruling the sodomy laws unconstitutional by the US Supreme Court has been cited as one such example.9
Failure to repeal the sodomy laws in Malaysia is reflective of the resistance which emerging international human rights norms have encountered in domestic jurisdictions in which political leaders and the judiciary view such developments as encroachments on state sovereignty and national identity.10 The prominence of the sodomy trial and subsequent conviction against the former Deputy Prime Minister in Malaysia Anwar Ibrahim (‘Anwar’) demonstrated the power of vilifying the homosexual ‘other’ through use of the term ‘sodomy’ and all of its associated connotations.11 The sodomy conviction of Anwar was ultimately overturned. Though the sodomy laws in Malaysia have still not been repealed, it is arguable that vilification of the homosexual ‘other’ for political purposes has been disempowered recently.12
The factual circumstances in Malaysia arguably reflect ‘the backward looking and the forward looking’ in relation to recognition of freedom to enjoy one’s own homosexuality as an aspect of basic human rights principles.13
The author asserts the situation in Malaysia is in some respects similar to the factual circumstances fostering both human rights and constitutional milestones in the US and Australia. All three instances have actually served to strengthen the international human rights movement for recognition of freedom with regard to LGBTI orientation. The author recognises that the repeal of these laws will not result in the elimination of homophobia, as such fear is perpetuated by a complex mix of arguably historical, political, religious and other factors (including gender, age, education and socio-economic background) that remain relevant within all three countries. Nonetheless, as with human rights principles generally, it is extremely important symbolically to begin with the repeal of the sodomy laws. Addressing homophobia requires multi-disciplinary approaches that transcend changes in the law and include the involvement of, and consultation with, all communities to foster a greater understanding and respect for the international human rights principles of privacy, dignity, autonomy and equality – as reflected in the freedom to form intimate associational homosexual relationships.14
The author recognises that there are limitations of engaging in comparative methodology. First, laws of each country are shaped by their own particular historical context. Though it is important to recognise the potential utility of law as a means of bringing about social change, it is just as important to acknowledge that a law or principle in a particular jurisdiction can represent distinct historical legal conventions, customary traditions and mores. There are limitations with historical accounts.15
Jansen has suggested that descriptions and comparisons between laws in domestic and overseas jurisdictions are inherently related to an author’s own impressions and perceptions-that produce ‘choices’ (both conscious and subliminal) about what the law is and what the law should be.16 The author acknowledges his own subjectivities (race, class, gender, socio-economic background, age, educational experience, sexual orientation, religious upbringing, etc.) shape his impressions about the sodomy laws in each context. The author acknowledges this comparative study is motivated in part by a desire to advance the human rights of LGBTI individuals.17
As a White Western male, the author also recognises the particular difficulty in advocating a consistent approach to homosexual relations when the comparisons involve Western and non-Western legal systems. The author is also aware that the issue of ‘globalization’ further complicates comparative methodology and advocating legal change brought about by emerging international norms of human rights risks being viewed by non-Western countries as a form of colonialism that seeks to impose ‘decadent’ Western neo-liberal values on non-Western countries. Globalization, with all its varied normative understandings, in the Western and non-Western world, has certainly had an impact on all countries in the world.18
Repealing of the sodomy laws has been resisted to some extent in each of the contexts due to the international pressures brought about by the emergence and growth of discourse in human rights on a global level.19 One arguable consequence of globalization is the greater sharing of information via the internet between marginalized communities (such as the lesbian and gay communities) and movements of peoples between nation-states around the globe, resulting in different identities within nation-states and transcending national borders. This has resulted in a broadening of dialogue on issues of human rights and other related fields (eg religion, sociology, economics, biology, political science and history) and the initiation of certain basic standards of human rights that extend beyond territorial borders and systems of hierarchy.20
Comparisons and calls for uniform laws are accomplished with least difficulty by the comparativist in those situations in which there are not great differences between the legal systems of two countries. Each of the countries in this comparative piece share both similarities and differences in their legal systems. This makes such a comparison both more challenging and fruitful.21 All three countries have federal systems of government. Australia and Malaysia are both monarchies based on the Parliamentary Westminster system. There are individual rights expressly provided for in both the US and Malaysian Constitutions. Unlike the US, the rights in the Malaysian Constitution are subject to circumscription by Parliament to uphold morality, public order or national security.22 In addition, differences in historical development and independence from the British Empire in each context means there are essential discrepancies at a very basic level. Indeed, the values cherished in the legal systems of Australia and the US (such as separation of powers and judicial independence) have not been embraced in actuality for over twenty five years in Malaysia, and the differences in historical development help explain why such principles have only been for the most part rhetorically supported by the ruling party.23
As Dannemann suggests, calls for standardization of a law requires a full appreciation of the milieu within which such a law functions in each jurisdiction. This might involve considering the differences on the range of factors fashioning the subjectivities of individuals who comprise society.24 It is imperative to evaluate these differences and how repeal of the sodomy laws have been and/or might be received in each context. As the author concludes in this article, repealing the sodomy laws does not necessarily change social attitudes toward homosexuality instantly. This has certainly been the case in Tasmania – a state in Australia with some of the most progressive legislation in Australia but with attitudes about homosexuality still less advanced than other states – such as Victoria.25 However, the repeal of the sodomy laws in Tasmania has been not only symbolically important but they have most certainly continued to improve social attitudes at least in the urban areas of the state since the time they were initially challenged by gay rights activist Nick Toonen in the early 1990s and which resulted in the unanimous landmark Toonen international human rights case decided by the United Nations International Human Rights Committee (‘UNHRC’) in 1994.26 The decision in Toonen has been cited by human rights organisations, such as Human Rights Watch, as a momentous international decision protecting the basic civil right of privacy and confirming the political right to non-discrimination on the basis of sexual orientation which spawned widespread community based advocates for LGBTI freedoms. At the same time, the decision in Toonen also became a lightning rod for a coalition of at least facially incompatible political and religious interests unified in their opposition to lesbian and gay rights as an assault on the fundamental tenets of ‘culture’.27 As noted in the conclusion of this article, this reliance on ‘culture’ is misplaced.
According to Graziadei, a study of law reform in different countries requires taking into account three main aspects of change: law resulting from a desire to yield better economic performance; change brought about by a desire to identify with progressive trends in other countries; and change brought about through hostility.28 As will be demonstrated in this article, the repeal of the sodomy laws in Australia and the US and the failure to repeal them in Malaysia has been associated with the three main aspects of law reform identified by Graziadei.
As previously noted, the sodomy laws were repealed in Australia in May 1997 as a result of the Toonen decision handed down by the UNHRC to conform to Australia’s legal obligations under the ICCPR. As will be demonstrated in this article, the willingness of the Keating Labor government to submit its domestic laws to scrutiny by the UNHRC ultimately resulted in the repeal of the sodomy laws in Tasmania, and arguably represented a desire by Australia to identify with progressive trends in the international community and particularly amongst Western countries.29
In Australia, the repeal of the sodomy laws in Tasmania led to some of the most progressive legislation and policies in the nation on dealing with issues of homophobia.30 Nonetheless, this state was identified in a recent survey as amongst the least progressive with regard to attitudes about homosexuality. This arguably supports queer theorists who assert law reforms are insufficient to free queers from oppression in our lives.31 In some respects, this is not particularly surprising, given Tasmania was the final state in Australia to legalize homosexuality. Subsequent legal developments concerning gay rights in Australia were regressive under the Howard government, as reflected in the amendments to the federal Marriage legislation which entrenched common law rules prohibiting the recognition of same sex couples as married. This might have exacerbated homophobic attitudes in the short term in an upcoming election to gain political advantage.32 This might partially explain the findings of a 2003-2004 survey reflecting the persistence of homophobia throughout Australia, including especially in Tasmania and in rural Australia.33
To the present time, , homophobia and violence sometimes associated with fear of the homosexual ‘other’ (which can be exacerbated in the short term with public visibility and activism for lesbian and gay freedoms), remain a persistent problem in Tasmania (particularly in the rural areas).34 At the same time, social attitudes regarding homosexuality have most certainly improved since the sodomy laws were first challenged by Nick Toonen in the early 1990s.35
In the US context, the Supreme Court initially refused to overturn the sodomy statutes in 1986 by a 5-4 split.36 The majority and dissenting opinions reflected both homophobic and heterosexist norms prevailing at the time. In 2003, the Supreme Court in Lawrence v Texas cited four decisions of the European Court of Human Rights in ultimately repealing the laws on sodomy at a federal level.37 This was certainly not uniformly embraced by all members of the Supreme Court. Indeed, it actually resulted in criticism from the three dissenting members of the Bench. Nonetheless, changes in Supreme Court decision making on this issue parallel the progression of human rights standards in Western Europe and in the UNHRC which had already recognised in much earlier cases that laws on sodomy violate basic civil rights of homosexuals. The right to personal dignity and autonomy as well as the freedom to form intimate associational homosexual relationships must also reflect a willingness to avoid the targeting of homosexuals with symbolic psychological and physical violence (as exemplified in the brutal murder of Matthew Shepard in Wyoming in 1998 because of his homosexual orientation,38 and by the emerging state-wide movements to eliminate all legal protections against discrimination of homosexuals as demonstrated in the factual circumstances giving rise to the 1996 Romer v Evans Supreme Court case).39 The majority of justices in Lawrence v Texas perceived the repeal of the sodomy laws were needed to avoid the singling out of homosexuals for disfavoured treatment. The majority judgment reflected the growing interaction between international human rights norms and domestic law.40
The initial attempts by Nick Toonen to have the sodomy laws in Tasmania repealed in the early 1990s were much more progressive than social attitudes in the State of Tasmania at the time. Even with the repeal of these laws, homophobia continues to be a social problem. In both Australia and the US, repeal of the sodomy laws reflected changing social attitudes amongst the general populace, though homophobia and occasional violence associated with fear of the homosexual ‘other’ remain to the present time. In Malaysia, the sodomy charges and subsequent trial and conviction against such a high profile public figure were associated with strengthening resistance to the evil decadent forces of Western globalization and its perceived negative economic and social consequences for Malaysia. As one comparative methodologist has stated:
the spread of human rights … generates multiple occasions for contact with profoundly different legal cultures outside the western orbit and brings home the reality of ‘extraordinary places’ in the legal world. Multiple standpoints becomes simultaneously valid and equally worthy of respect.41
The author is aware that arguing for universalist norms on any topic (particularly in relation to homosexuality) subjects him to criticism for maintaining a certain world view that might promote individual rights and certain values such as diversity, privacy, dignity, autonomy and equality without taking into account perceived communal interests or fundamental aspects of religious views held in all three countries. Since the 19th century, homosexuality has been portrayed in fundamentalist religious thought in Western countries as a deplorable act.42 This can explain partially the historical resistance to reforming the sodomy laws in Australia and the United States. In Malaysia, the official religion is Islam and human rights are perceived in many Islamic contexts as anything but dispassionate and unbiased.43
On the other hand, one of the purposes of comparative scholarship is to gain more accurate information44 and facilitate greater ‘cross fertilisation’ between peoples, recognising that ‘[s]tereotyped assumptions about other systems which tend to shape the perception of legal knowledge may well be intensified by increased contact’.45
The author is asserting that diversity (and the acceptance of such diversity by all communities), dignity and autonomy are fundamental aspects of prohibitions on discrimination on the basis of sexual orientation.46 These values should be celebrated as universal virtues in all contexts irrespective of gender, age, educational and socio-economic levels, ethnic, religious, political and legal differences. Certainly, one of the acknowledged aspects of increasing ‘globalization’ is greater sharing of information via the internet between marginalized communities (such as the lesbian and gay communities) and movements between peoples throughout the world than there has been in the past, resulting in different identities within nation states and transcending national borders. As one comparative methodologist has explained, diversity can be confronting between different nations and to groups (whether marginalized or part of the mainstream) within particular nations: ‘[h]ere the politics of difference becomes a politics of resistance to standardization and a fierce assertion of identity: “the other refuses to disappear: it subsists, it persists, it is the hard bone on which reason breaks its teeth”.’47
This article concludes that advocates of the recognition of freedom with regard to LGBTI sexual orientation have been subjected to resistance in all three contexts because they are one of the many marginalized groups in society. Freedom to enjoy one’s own homosexuality is a key aspect of other fundamental human rights such as the right to personal dignity and autonomy. From a poststructuralist perspective, the sodomy laws in all three contexts became the location of struggles for social, economic and political influence. According to poststructuralists, subjectivity is generated in a wide range of social, economic and political dialogue. This range of discourse about homosexuality contains meanings which are symbolic because they are at the forefront of battles over power. Aspects of subjectivity are created historically and capable of being altered in social, economic and political discourse. The dynamics of power based on homosexual orientation can be changed arguably through a political struggle over commanding meanings and ideas about homosexual orientation.48 The dominant discourse about the homosexual ‘other’ has been altered to a certain extent by the repeal of the sodomy laws in the US and Australia. Changes in laws and even in the use or non-use of language can over time bring about major changes in the way homosexuals are viewed in a variety of communities and environments affecting individual subjectivity.49 Unfortunately, recent developments in Malaysia at the time of writing this article suggests the ruling elite is trying to maintain a grip on political power as evidenced by its willingness to engender fear of the homosexual ‘other’ personified by Anwar.50
Like human rights generally, LGBTI freedoms have come a long way. Nonetheless, they still have a long way to go! The historical experiences with the sodomy laws in each of the three jurisdictions are examples of both. As one comparative methodologist explains, it is important not to simplify ‘truths and the complexities of truths … by overlooking the untranslatable.’51
III. The United States, Australian and Malaysian Experiences with Sodomy Laws
A. A Brief Overview
In the United States, sodomy remained a crime until the mid-twentieth century.52 When the United States Supreme Court had occasion to pass upon the constitutionality of the sodomy laws in the US in 1986, almost half the States in the US had legalised private, consensual sexual conduct between adults.53 Nonetheless, in 1986, the United States Supreme Court in Bowers v Hardwick upheld the constitutionality of the existing sodomy statutes.54 The sodomy laws were ultimately ruled unconstitutional in the US by the United States Supreme Court in 2003 in Lawrence v Texas.55
In Australia, the sodomy laws in Tasmania were repealed in 1997 to conform to Australia’s obligations under the International Covenant on Civil and Political Rights (‘ICCPR’). Toonen, a gay activist from Tasmania, successfully argued to the United Nations Human Rights Committee (‘UNHRC’), using the complaint procedure provided for under the (First) Optional Protocol to the ICCPR, that the sodomy laws in Tasmania violated Australia’s obligations under Article 2(1) and Article 17 of the Convention.56 In response to a unanimous finding by the UNHRC, Tasmania eventually repealed its sodomy laws in 1997.57
In Malaysia, as pointed out earlier, the sodomy laws still exist. They carry a maximum penalty of 20 years imprisonment and lashings.58 These laws were enforced in Malaysia in a case lasting over one year involving a high profile public figure – Anwar, the former Deputy Prime Minister of Malaysia. In mid-2000, Anwar was sentenced to a nine year prison term after being adjudged guilty of sodomy. Anwar appealed his conviction for sodomy. Though finding evidence that Anwar was involved in homosexual activities, the Federal Court of Malaysia overturned the conviction in 2004 on the basis that the violation of the sodomy laws was not proven beyond a reasonable doubt by the prosecution.59 The changing evidence concerning the alleged dates of the offence allowed to be introduced into evidence by Justice Arifin at the trial raised genuine concerns about procedural fairness and highlighted scepticism amongst Malaysians about the impartiality and independence of the judiciary. Such views had steadily solidified since 1988 with the dismissal of high level judges followed by contentious appointments as well as promotions of members of the Bench.60 The Anwar trial eroded faith amongst the populace concerning the dispensation of criminal justice, thereby undermining public confidence in the genuine ability of the judiciary to uphold the ‘rule of law’.61
Recent developments in Malaysia as outlined in Part III (D) suggests the previous trial of Anwar on charges of sodomy may prove to have been insufficient to destroy his political aspirations. This contrasts sharply with other previous cases in the 1950s and 1960s in which the admission of homosexuality destroyed the career of public figures. For example, Peter Wildeblood, an English journalist, novelist and playwright was imprisoned for one year in 1954 for admitting his homosexuality in court in the UK. As a result of his conviction, he lost his job as a foreign correspondent for The London Daily Mail. He subsequently testified to the Wolfendon Committee and to the House of Lords and championed the cause of gay rights. His testimony and defiance against the then British norms against homosexuality contributed to the 1957 recommendation in the Wolfendon Report that homosexuality be decriminalized which ultimately eventuated in 1967.62
However, after experiencing a political resurgence in recent nation-wide elections, Anwar once again faces charges of sodomy in Malaysia.63 These developments demonstrate there is arguably a continued willingness to use fear of the homosexual ‘other’ for political purposes in an effort to destroy the rising political popularity and aspirations of Anwar.64 The factual circumstances in Malaysia arguably reflect ‘the backward looking and the forward looking’ both in relation to values cherished in liberal democracies but also in relation to recognition of freedom to enjoy one’s own homosexuality as an aspect of basic human rights principles.65
B. The US-American Context
In this section, the author will discuss the three landmark American cases that are relevant to the constitutionality of the sodomy laws.
(1) Bowers v Hardwick
In 1986, the Supreme Court of the United States in Bowers v Hardwick, upheld the constitutionality of the sodomy statute in Georgia.66 The majority held that homosexuals were not a class of individuals entitled to protection under the Equal Protection Clause67 nor were there any fundamental rights arising from an implied right of privacy that would justify subjecting the sodomy laws to heightened scrutiny by members of the court.68 Even though the Georgia statute applied to sexual activities between consenting heterosexual and homosexual adults,69 the court (reflecting homophobic attitudes) framed the issue in the case very narrowly as ‘whether the Federal Constitution confers a fundamental right upon homosexuals to engage in acts of sodomy?’70 The court held that society’s sense of immorality was a legitimate state interest to justify the sodomy law.71
The result in Bowers is consistent with law’s historical differential treatment of homosexuality from heterosexuality since the late 19th century when the homosexual as a separate class of person emerged.72
In Bowers, four justices dissented. Justice Blackmun, one of the dissenters, dismisses the notion that historical circumstances or religious moral prohibitions are sufficient to justify the continuation of rules when the circumstances under which the rule was initially established are not relevant to contemporary norms. The right of privacy necessarily subsumes within it the right to be free to form intimate associations ‘[that] does not depend in any way on [homosexual] orientation’.73
The other three dissenting Justices (Stevens, Brennan and Marshall) also noted the problems with discriminatory enforcement of the challenged sodomy law in that it applied irrespective of the marital status and gender of the parties.74 Decisions regarding physical intimacy inside and outside the marital relationship (whether homosexual or heterosexual) are liberty interests protected by the substantive component of the 14th Amendment Due Process Clause.75
The result in Bowers restrained the expansion of the implied right of privacy.
(2) Post-Bowers, AIDS, and Social Intolerance
After the decision in Bowers, the AIDS epidemic emerged in the United States. Beginning in 1990, the US Federal Government, under the administration of President George Bush Sr, began assembling statistics on the commission of reported hate crimes which included sexual orientation as one category of hate crimes.76 From 1996-2006, the number of crimes related to prejudice based on sexual orientation reported in the US increased from just over 1,000 to 1,415.77 The Clinton/Gore administration attempted to address the fear of the homosexual ‘other’ through a variety of symbolic as well as practical actions and policies.78 Some queer theorists would not necessarily agree that seeking legal redress through the contemporary liberal state has always produced gay liberation. In fact, some commentators, such as Morgan, would argue such efforts on behalf of gays and lesbians as well as other traditionally marginalized groups in society (eg racial and religious minorities as well as women) has had the opposite effect.79 Indeed, not all of the proposed and actual changes in the law of the Clinton/Gore administration (even if well intentioned) advanced social tolerance and acceptance of gays and lesbians in the short term80 such as the unsuccessful attempt to lift the ban on gays in the military in 1992 and signing the Federal Defense of Marriage Act (DOMA) in 1996.81 These actions might have exacerbated homophobia in the short term.82 The author believes addressing homophobia requires multi-disciplinary approaches that include not only changes in the law but also initiatives aimed at educating all communities in society to foster a greater understanding and respect for the principles of privacy, dignity and autonomy – as reflected in the freedom to form intimate associational LGBTI relationships.83
(3) Romer, Governor of Colorado, Et Al v Evans Et Al
In 1996, in Romer, Governor of Colorado, Et Al v Evans Et Al,84 the United States Supreme Court held (by a 6-385 majority) unconstitutional as a violation of the Equal Protection Clause86 a state-wide movement (reflected in an Amendment to a state Constitution) to eliminate for homosexuals protections of basic civil liberties in the private and public domain afforded to all persons who were not homosexuals.87 The court recognised homosexual persons as a class of individuals, representing a shift in the language of majority in Bowers v Hardwick. The law was invalidated under the lowest level of constitutional review by the Court.88 The Court concluded there was a lack of a rational relationship to a legitimate state interest. The law could only be explained on the basis that it reflected hostility toward the class of individuals affected.89 The decision in Romer paved the way for the eventual overturning of the sodomy laws three years later in Lawrence v Texas.90
In the interim, President Bush in 2001 appointed the first openly gay man as Director of the White House Office of National AIDS Policy. He was subjected to criticism from evangelicals and many in the right wing of the Republican Party. He was also criticised from those on the political left for appointing the first gay male to a position that would tap into all of the homophobic societal associations of AIDS with gay men. Nonetheless, some have asserted that Bush’s move in 2001 represented an important milestone in the chronicle of the gay civil rights movement in that he demonstrated the courage to resist and disregard the anti-gay members of his own political party by appointing an openly gay man to an important White House post.91 Others have suggested some of the policies throughout the Bush administration have been regressive for lesbian and gay rights. Whilst appointing an openly gay man to a high level policy position in the White House and extending ‘federal benefits to the same-sex partners of police and firefighters’ if they pass away during the line of duty, the Bush administration has nominated men to serve as members of the federal judiciary with historical records of animus toward gay issues.92 In addition, President Bush nominated Dr James Holsinger as US Surgeon General who has allegedly displayed anti-gay animus based on religious belief. Dr Holsinger wrote a paper for a religious congregation in 1991 in which he asserted homosexual acts exemplified ‘unnatural and unhealthy’ sex.93 He also allegedly played a role in setting up a church in Kentucky that conducts a ministry for former gays and was criticised for being a firm anti-gay advocate within the top hierarchy of the Methodist Church. His appointment was opposed by AIDS Action and the Human Rights Campaign and the National Gay and Lesbian Task Force.94 As one commentator has observed: ‘[u]nder the Republicans, gays get the glad hand while phobes get the power’.95 In addition, President Bush recently threatened to veto hate crimes legislation that would have expanded the category of crimes committed to include those based on sexual orientation. Though the legislation passed overwhelmingly in both Houses of Congress, this provision was ultimately deleted from a Defense Authorization Bill because of a threatened Presidential veto. Some Democrats who supported the initial legislation were concerned there would be insufficient votes in the Senate to override the veto of the bill with the hate crimes provisions and jeopardize postponing higher pay for members of the military.96
(4) Lawrence Et Al v Texas
In Lawrence v Texas, the United States Supreme Court had occasion to consider if the ruling in Bowers should be overturned.97 There were two potential avenues for overturning the Texas law: as a violation of the Equal Protection Clause or the Substantive Component of the Due Process Clause of the 14th Amendment (which protects liberty and privacy interests).98
The court refused to entertain the Equal Protection challenge.99 Nonetheless, the court expressly overruled Bowers v Hardwick. The language of the court advanced even further than in Romer v Evans in which the court simply recognised homosexuals as a discrete class of individuals. As distinguished from the narrowly framed issue in Bowers v Hardwick, the majority judgment in Lawrence v Texas recognises a wider liberty interest protected by the substantive component of the Due Process Clause of the 14th Amendment. The court held laws, such as the Texas and Georgia sodomy ones, violate liberty and privacy interests, the extent of which such interests the court in Bowers failed to appreciate.100 Such liberty interests are protected by the substantive component of the Due Process Clause. There was no legitimate state interest to justify interfering in the individual personal sexual activities between consenting adults in the privacy of one’s home.101 The constitutional jurisprudence relating to the Due Process Clause did not change in the Lawrence case. No fundamental rights were implicated in this case so the Texas law needed to survive merely rational basis review. Again, the Court, as in Romer v Evans, seems to have employed a more searching form of rational basis review. One thing is clear: Safeguarding society’s sense of immorality is not a legitimate state interest nor is it rationally related to achieving one.102
The majority took issue with the historical premises upon which the majority relied in Bowers as justification for allowing prohibitions on sodomy.103 The court noted there was no evidence to prove that laws in the US were historically aimed at prohibiting homosexual conduct. Such laws were designed to prohibit non-procreative sexual conduct.104 Citing some scholars, Kennedy observed the notion of the homosexual as a separate type of person did not emerge until the end of the 19th century. In addition, the court noted these laws were not enforced historically in situations in which there was consensual private sexual conduct between adults.105 Most of the convictions were for non-consensual sexual actions (often involving a minor) or for engaging in such actions in public.106 US laws aimed at homosexual conduct did not emerge until the 1970s. Homosexual conduct was criminally prohibited in just nine states.107 The court noted the trend of five of these states to abolish such laws. The majority, therefore, concluded that the argument made in Bowers about the historical legacy of laws proscribing homosexual sodomy was at odds with historical reality.108
The court was especially concerned with the shame and dishonour attached to criminalising homosexual sodomy and the resulting stigma attached to conviction under the Texas law. As Kennedy stated: ‘[w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres’.109 The majority concluded this case deals merely with two mutually consenting adults ‘engaged in sexual practices common to a homosexual lifestyle. … [to which they] are entitled to respect for their private lives’.110 Kennedy concludes that the ‘State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention by the government’.111
Significantly, the majority pointed out that the result in Bowers was also at odds with evolving international human rights norms. As support for this proposition, the majority cited four decisions of the European Court of Human Rights.112 Reliance on European Law in this case generated significant media coverage in the United States as well as condemnation from legal circles.113 Yet, the willingness to rely upon evolving norms of international human rights law reflected in earlier judgments in Western Europe reflects the impact of globalization in fostering the development of a ‘transnational jurisprudence’ reflecting a growing interaction between international human rights law and constitutional interpretation.114
Justices Scalia, Thomas and Rehnquist vigorously dissented. Noting that existing precedent had been overturned, the dissenters said this presented troubling implications for important values in any legal system. Such values included the need for predictability and stability.115 Neither a fundamental right was recognised by the majority nor was a suspect classification implicated.116 Thus, the law should have been subjected to ordinary rational basis review. All sorts of laws are based on moral values. Society’s sense of immorality has historically and should thus continue to serve as a legitimate state interest and a rational basis for the Texas law.117 In a blistering attack reflecting homophobic views, the dissenters state:
Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. … It is clear … that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. … Let me be clear that I have nothing against homosexuals … promoting their agenda through normal democratic means.118
By the time this case was decided, attitudes toward homosexuality and homosexual relations were much more socially accepting. A Gallup Poll conducted in 2003 indicated that 60% of Americans believed homosexual relations between consenting adults should be legal as contrasted with 43% when the survey question was first asked in 1977. 54% of those surveyed in 2003 thought homosexuality should be considered an acceptable lifestyle. This represented the highest level of acceptance since the question was first asked in 1983 before the decision in Bowers v Hardwick. 90% of Americans agreed that homosexuals should have equal rights in terms of job opportunities.119
The result in Lawrence represents a culmination in changing social attitudes. Such changes were fostered through a variety of means, including without limitation, changes in evolving norms of international human rights law, more enlightened medical and educational understandings of sexual orientation as well as more generous and expanding notions of liberty and privacy interests.120 President Clinton’s attempts to foster a zone of social acceptance for lesbians and gay men had finally been vindicated and reflected in the majority judgment of the US Supreme Court in Lawrence v Texas. At the same time, from the perspective of Foucault, it must be remembered the legal norms on homosexuality produce new flows of media essential for the contemporary state to effectively exercise its punitive power to homogenize the homosexual into the heterosexist paradigm. In other words, greater acceptance of lesbians and gays as reflected in the repeal of the sodomy laws does not necessarily translate into liberation for LGBTI groups.121 This is certainly reflected in several factors: (a) the continued persistence of hate crimes committed on the basis of animus toward sexual orientation which continue to account for the third highest rate of reported hate crimes in the US; (b) the continued refusal of the Bush administration to allow enactment of hate crimes legislation covering animus based on sexual orientation, which such law reform has been overwhelmingly supported by both the Senate and House of Representatives; and (c) judicial nominations to federal appellate courts as well as the recent nomination for US Surgeon General of individuals with proven track records of anti-gay bias.
Nonetheless, the dynamics of power based on homosexual orientation has been changed arguably through a political struggle over commanding meanings and ideas about homosexual orientation.122 The dominant discourse about the homosexual ‘other’ has been altered to a certain extent by the repeal of the sodomy laws in the US. Changes in laws can over time bring about major changes in the way homosexuals are viewed in a variety of communities and environments affecting individual subjectivity.123
This is certainly reflected in the changing social attitudes towards homosexuals amongst the US populace. It has also been reflected in the US Democratic primary election season. In mid-2007, Senator and US Presidential candidate Hillary Clinton renounced her lukewarm support for that aspect of DOMA that disallows federal recognition of same-sex marriages.124 Senator Clinton later acknowledged differences over the issue of same-sex marriage have been used ‘for divisive purposes, for political purposes in the last several elections’. She also recognized all of the Democratic candidates for the Presidency in 2008 ‘are really personally opposed to [such a situation] and [they will] do everything [they] can to prevent it’.125 Thus, the repeal of the sodomy laws has been a significant symbolic step in the direction of addressing at least some of the causes of homophobia. Nonetheless, whilst significant, as demonstrated throughout this article, such changes are insufficient on their own to address societal homophobia but at least in the US vilifying the homosexual ‘other’ arguably no longer represents a viable strategy for securing and maintaining political power.
C. The Australian Context
In Australia, sodomy statutes in Tasmania were challenged through international legal mechanisms in the early 90s.126 As pointed out earlier in this piece, Australia is a signatory to the ICCPR. It is also a party to the (First) Optional Protocol to this Treaty, which took effect in Australia in late 1991.127 The purpose of the Optional Protocol is to encourage the achievement of the protections provided for in the ICCPR through the implementation of its provisions. It is also designed to allow the United Nations Human Rights Committee (‘UNHRC’) to consider communications from persons alleging they have been an injured party due to violations of any of the rights set forth in the ICCPR.128 States, such as Australia, who are parties to the Optional Protocol, accept the ability of the UNHRC to entertain such communications.129 Under Article 2 to the (First) Optional Protocol, a person alleging a breach of their rights under the ICCPR may communicate in writing with the UNHRC to consider their claim, provided such individual has first exhausted all available domestic remedies.130
Nick Toonen, a gay rights activist in Tasmania, was determined to address issues of homophobia in his home state. One of the first steps would be securing the repeal of the sodomy laws in Tasmania. After frequent unsuccessful attempts to abolish Tasmania’s criminal sodomy laws in the Upper House of Tasmania (the Legislative Council) in 1992, Toonen,131 an Australian citizen and resident of Tasmania, used the complaint mechanism procedure established through the Optional Protocol to complain that these laws contravened Australia’s obligations under Article 17 (dealing with privacy), Article 2(1) (dealing with non-discrimination on the basis of sex), and Article 26 (dealing with the right to equality before the law) of the ICCPR.132
Australia, during the Keating Labor government, did not challenge the admissibility of the communication.133 The Committee decided that Toonen was a victim within the meaning of Article 1 of the Optional Protocol even though the sodomy laws had not been enforced in Tasmania for several years. The mere possibility of risking enforcement and the enveloping force of these ongoing sodomy laws on popular opinion had a direct impact on Toonen and would continue to do so. For this reason, the Committee deemed Toonen a victim within the meaning of Article 1.134
Australia acknowledged that Toonen’s privacy had been subject to arbitrary interference and that the sodomy laws were unjustifiable on public health or moral grounds.135 Australia also conceded that the right to privacy encompassed in Article 17 of the ICCPR included within its ambit consensual sexual activity in private.136 Finally, as previously stated, Australia accepted that Toonen had been directly and individually affected by Tasmania’s sodomy laws.137
The pertinent sections of Tasmania’s sodomy statutes were found by the UNHRC to violate Article 17 of the ICCPR and arbitrarily interfere with Toonen’s right of privacy under subsection (1).138 The UNHRC also found that the criminalization of homosexual practices is not a reasonable or proportionate way to prevent the spread of HIV/AIDS. Indeed, the UNHRC noted that such laws hinder public health initiatives ‘by driving underground many of the people at risk of infection’. The Committee noted there is no causal connection between criminal sodomy laws and successful attempts to manage the proliferation of HIV/AIDS.139
The UNHRC also found that the referral to sex in Article 2(1) should be taken to include sexual orientation.140 Accordingly, the UNHRC found a violation of Article 2(1).
Having found violations of Articles 2(1) and 17(1), the UNHRC was of the opinion that an effective remedy would be the abolition of sections 122(a), (c) and 123 of the Tasmanian Criminal Code. The UNHRC said it did not need to consider whether there was also a violation of Article 26 of the ICCPR.141 Some gay rights advocates were disheartened that the UNHRC refused to determine if Article 26 had also been violated. Equal protection of the laws would, for example, allow members of the same sex to display affection in public. A right of privacy would not be covered in such a situation.142
However, a separate opinion written by the Swedish representative, Mr Bertil Wennergren, to the UNHRC found violations of both Articles 17 and 26. He found a violation of Article 26 because the Tasmanian sodomy laws proscribe sexual activity between consenting males without prohibiting such activities between consenting women. Men are therefore not treated equally before the law.143
As previously mentioned in the introduction to this article, Tasmania eventually repealed its sodomy laws and now has some of the most enlightened laws and policies in Australia on issues with respect to educational strategies to combat homophobia in education,144 and has been promoted as a destination welcoming of gay tourists, as well as State policies that represent sensible responses to controlling the spread of HIV/AIDS.145 Equally remarkable, Tasmania passed a law in 2003 recognising significant conjugal and non-conjugal relationships that provide legal equality in such relationships similar to a civil union or marriage.146
As Toonen accurately pointed out, the mere existence of these laws perpetuate homophobia in the general community (as well as the gay community) and sends a message that the sexual activities of gay men are criminally reprehensible. This, in turn, fosters an environment in which hate crimes based on animus toward gay men are essentially encouraged. However, even the elimination of these sodomy laws has not eliminated the attitudes giving rise to homophobic violence. A series of studies conducted in the mid-1990s in Victoria and New South Wales reflected widespread verbal abuse, harassment, threats and violence committed against lesbians and gay men.147 Other studies commissioned by the New South Wales Attorney General’s Department as recently as 2003 reached similar findings.148 As Toonen persuasively reasoned in his complaint to the UNHRC, in a society with a diversity of ethnic, religious, cultural and political backgrounds, such as Australia, the criminal law should try to refrain (to the extent possible) from ingraining clashing conventions of morality.149
The difficulty one would expect in advocating a consistent approach to homosexual relations in Western and non-Western countries were not an impediment to the unanimous UNHRC ruling. There was a range of countries represented in the UNHRC at the time the unanimous Toonen decision was made, including some countries that would be expected to adopt a cultural relativist position in relation to this case. For example, there were representatives from States with large populations practising the Islamic faith, such as Egypt and Jordan as well as States with large populations observing the Catholic faith, such as Ecuador, Venezuela and Jamaica.150
The ruling had significance far wider than just in Australia. Though not a signatory to the Optional Protocol, the United States is a signatory to the ICCPR and ratified the Convention in 1992.151 The US, until the 2003 ruling in Lawrence v Texas, was in breach of its international legal obligations under the ICCPR. More specifically, the sodomy statutes in the US represented a breach of Articles 2(1) and 17(1) of the ICCPR. Though the court in Lawrence v Texas did not expressly refer to the ruling of the UNHRC, such a ruling clearly has persuasive authority to the same extent as the result in Dudgeon and the Wolfendon Report, both of which were expressly relied upon in part in the majority judgment as persuasive authority in deciding to overrule Bowers v Hardwick.152
Toonen decided that sexual orientation rights form part of the ICCPR. The decision also represents an evolving universal norm of international human rights law in which the privacy rights of gay men are recognised and protected.153 As Australian High Court Justice Michael Kirby has stated:
Sexual identity is now increasingly accepted as an important issue of global human rights. Many individuals have been subject to, and continue to suffer from, unjust criminal and civil sanctions for their sexuality. And also to the shame, alienation and self-doubt which such laws give rise to and reinforce … Mr Toonen’s case is … a singularly vivid illustration of the practical way in which, today, international law can sometimes be brought to bear upon domestic law, including in Australia and in the field of criminal law and even in the sensitive area involving sexuality.154
The Toonen case is just one in a series of cases dealing with evolving norms of international human rights pertaining to sexual orientation, including more recently the UNHRC decision in Young v Australia (recognising the right of same-sex domestic couples to receive the same veteran’s pension as heterosexual domestic couples),155 as well as the Lustig-Prean and Beckett v United Kingdom case considered by the European Court of Human Rights (striking down the prohibition on gays openly serving in the military).156 Commentators have argued strenuously that there is growing evidence of evolving universalist rights based on sexual orientation.157
Notwithstanding these developments or the progressive decision in Toonen, the homophobic attitudes underpinning such laws in Tasmania continue to the present time. For example, studies conducted as recently as 2002 and 2003 indicate an alarming trend of bullying at schools and greater risk of suicide amongst youth attracted to the same sex.158 These statistics have been accounted for by a variety of reasons, including lack of sufficient support networks for same-sex attracted youth, disapproving attitudes of parents incapable of offering affirmation, and the limited time, resources, knowledge and ability of teachers to deal with situations of bullying at schools. Such a scenario results in a restricted ability of the adolescent male already suffering from internalised homophobia to seek the assistance of counsellors and health care professionals. Suicide thus comes to be seen as a feasible path.159 In addition, homophobia has been linked to greater health risks, particularly in relation to the acquisition and progression of HIV/AIDS.160
As previously mentioned, Tasmania was identified in a 2003-2004 survey as amongst the least progressive with regard to attitudes about homosexuality.161 A recent newspaper article in The Age (Melbourne) in April 2008 attests to the continued existence of homophobia and violence often associated with fear of the homosexual ‘other’, both of which remain a persistent problem in Tasmania (particularly in rural areas). A gay property developer who had hoped to set up a holiday destination for gay tourists on Tasmania’s north-west coast, received death threats, and letters were sent to residents in the local town advising them to consider their children and oppose such a move which would overpopulate the town with gay men from Sydney.162 Thus, the repeal of the sodomy laws has not eliminated homophobia in Tasmania or even more generally in Australia.
As previously mentioned, some queer theorists, such as Morgan, assert law reform efforts on behalf of other traditionally marginalized and traumatized groups in society (eg race, religious minorities, women and gays and lesbians) has had the opposite effect. Morgan asserts that legislation protecting against discrimination throughout most of the West has yielded dreadful results. Such legislation has not been accompanied by notable improvements between gays and lesbians and those responsible for enforcing the legislation, through investigation by the police, trials by the judiciary or in the political arena. In addition, gay liberationists who subscribe to working within state institutional structures have been labelled as compliant legal actors fostering a ‘particularly restrictive and sanitised picture of gay and lesbian identity’.163
The above findings strengthen the notion of a tenuous link between law reform and liberation of LGBTI individuals. Nonetheless, at the very least, the repeal of these laws implicitly signalled a message by the government that the privacy rights (including the private consensual sexual activities of gay men) are recognised and protected by the state rather than criminally reprehensible. While homophobia persists even in the light of these changes, the repeal of such laws represents one small symbolic step in a progression of steps needed to address homophobia and its traumatic consequences. The author recognises the law is just one aspect in spreading homophobia. Researchers in both the US and Australia contend there is a widespread and obvious connection between the existence of societal heterosexism and homophobia and the rate of hate speech and hate crimes, including murder of gay men.164 These verbal assaults and crimes are greeted in the mainstream press usually with silence or nominal concern.165 Even with the repeal of sodomy laws, the criminal justice system operates in such a manner as to render the interests of lesbians and gay men of subsidiary importance. A classic illustration of this was the allowance of the defence of provocation in R v Turner (1994) involving the murder of a gay man in Australia.166 The defence of provocation has been allowed in several subsequent cases in which there was insubstantial evidence of a forceful homosexual advance, including R v Green,167 R v Marlow168 and R v Ladd169.170 A major part of the problem is the way in which homosexuality is viewed by Australian society. As the Streetwatch Implementation Advisory Committee in New South Wales concluded in a 1993 report: ‘[h]omosexuality is ridiculed, feared, despised and surrounded by myth … negative attitudes towards lesbians and gay men are the rule rather than the exception’.171
A 2003-2004 survey conducted by Roy Morgan Research indicates social attitudes have improved in the last decade. The survey found over one third (35%) of the population above aged 14 subscribe to the belief that homosexuality is immoral. Women are more tolerant than men with just over one quarter (27%) of women believing homosexuality to be immoral as contrasted with 43% of men holding this same view.172
Religious views condemning homosexuality as immoral have also played a key role in shaping Australian social norms.173 An increase in the incidence of HIV/AIDS has also contributed to a greater rate of occurrence of violence against gay men.174 The Australian criminal justice system exposes the wider social norms of Australian society and plays an instrumental role in rendering the ‘rights, concerns and fears of lesbians and gay men’ to a subordinate position to those of heterosexuals.175 The justice system also assists in legitimating violence and harassment against this class of individuals.176 Legal developments in Australia during the Howard era were regressive for gay rights as reflected in the amendments to the federal Marriage legislation which entrenched common law rules prohibiting the recognition of same sex couples as married. This might have exacerbated homophobia in the short term for political purposes in an upcoming federal election in 2005 by raising moral concerns and drawing on sentiments amongst some in the populace that gay marriage would undermine the social and cultural fabric of the family unit.177
Homophobia is perpetuated by a complex mix of arguably political, historical, religious and other factors (including gender, age, education and socio-economic background). Addressing homophobia requires multi-disciplinary approaches that transcend changes in the law and include the involvement of, and consultation with, all communities to foster a greater understanding and respect for the growing interaction between domestic attitudes and evolving international human rights principles of dignity, autonomy, privacy and equality – as reflected in the freedom to form intimate associational homosexual relationships.178 As scholars have previously implied, politicians, non-governmental organisations, such as Human Rights Watch, well-known personalities (such as the Australian Idol finalist Anthony Callea), members of the press and heroic sports figures (such as Australian Olympic diver and Gold Medal winner Matthew Mitcham who recently declared his homosexuality in a courageous way in the Sydney Morning Herald)179 can each contribute to advancing emerging international human rights norms regarding sexual orientation by embracing homosexuality in Australia as a sign of diversity and source of strength. So too can famous figures in other marginalized and traumatized communities.
Homophobia can also be addressed partly through additional research to identify causes of homophobia not identified above as well as educational initiatives affirming LGBTI individuals and their contribution to society, such as the ALLY Support Network at a number of tertiary educational institutions in Australia.180 More studies in particular states are also needed to ascertain the nature of homophobic violence, the extent to which non-reporting exists and the factors contributing to such non-reporting. Governmental policy determinations concerning the most effective methods for identifying and reporting of crimes motivated by animus to sexual orientation should be forthcoming with a view to developing a national framework to ensure consistency across all Australian states and territories in relation to their handling of prejudice related violence against homosexuals.181
Equally important, there should be recognition of rights accorded to heterosexual couples, such as the right to marriage or at least the establishment of a relationships register akin to the one in Tasmania.182 Though refusing to recognise same sex marriage, the newly elected Rudd Labor government has reaffirmed its pre-election pledge to establish a standardized national policy that would provide legal recognition of same-sex relationships similar to the relationships register currently operating in Tasmania.183 In Australia, in 2007 the Human Rights and Equal Opportunity Commission (HREOC) issued a report identifying 58 areas of discrimination in the law between same sex and opposite sex couples. Most of these areas of discrimination relate to disparate treatment regarding financial matters and in the workplace.184 After the issuance of this report (and prior to a recent federal election in Australia), the Australian Labor Party indicated it would implement the reforms recommended in the HREOC report soon after it won election. The new federal Rudd Labor government just announced it will introduce amendments to change approximately 100 federal laws to provide for equal treatment in relation to superannuation, health, tax, care for the aged and to prevent discrimination and promote equality in the workplace.185
Since the federal election, the Opposition Liberal Party has also indicated a willingness to follow these reforms. This represents a considerable move by all those in positions of political leadership. This willingness to address the areas facially identified as discriminatory between same sex and opposite sex couples reflects changing political, economic and social realities. It arguably reflects changing social norms amongst a younger tolerant generation that witnessed discrimination against same sex couples and are now in positions of political leadership. These changes are significant and reflect and reinforce sentiments amongst an overwhelming majority of Australians opposed to discrimination against same sex couples. It also represents a recognition of the pecuniary contribution of same sex couples to the economic well being of Australia. These economic and social factors have ultimately come to be reflected in the political policies of the now governing Australian Labor Party. At the same time, as previously pointed out, one should not expect the law reforms to eliminate all the factors contributing to homophobia in Australia. These fears though moderating are well entrenched amongst a sizeable minority of the populace in Australia and globally and can explain the continuation of prejudice related violence against LGBTI. Nonetheless, the actions rapidly undertaken by the recently elected Rudd Labor government represent very symbolic and practical steps toward addressing some of the legal manifestations of homophobia.186
D. The Malaysian Context
Malaysia gained independence from the United Kingdom in 1957. The Malaysian Constitution of 1957 set up a monarchy based on the Parliamentary Westminster system.187 The Constitution was amended several times. Though free speech and expression as well as personal liberty, associational freedoms and equal protection of the laws are provided for in the Malaysian Constitution, these rights can be abridged for a wide range of reasons which allow for very significant restrictions on freedom of expression in that Parliament can pass laws to suppress speech to maintain morality, public order or national security.188 The restrictions on expressional freedoms were designed to protect and preserve harmony within Malaysia’s multi-cultural, multiracial and mulitreligious population.189 The Malaysian Constitution has been sufficiently adaptable to changing times and represents ‘local, distinctively Malaysian values, historical, political and economic factors and also cultural traditions’.190
There is no express provision guaranteeing freedom of the press. The government of Malaysia has placed strict limitations on funding media can receive. Laws mandating that directors of media outlets be citizens of the country have also been passed. These restrictions have successfully diminished the potential influence of the media in reporting news items adverse to ruling governmental authorities. Indeed, the government has traditionally viewed the media as a body whose mission includes the inculcation of ‘appropriate cultural values to future generations’.191
Historically, the Malaysian government has relied upon the provisos restricting expressional freedoms to pass vague laws that suppress political speech on a variety of topics. The vague and overbroad nature of many of such laws as well as the significant penalties resulting from breach of such laws has historically had a chilling effect on political speech. Since the 1990’s, the Internal Security Act of 1960 (ISA) has been wielded by the government to detain political opponents, including high profile members of the government.192 Akin to the ISA, the Sedition Act as amended in 1969 (SA) has also been employed by the government to suppress political dissent and severely restrict the publication of materials written overseas.193 This legislation in particular has served as an obstacle to political opposition parties trying to engender sufficient support to compel the ruling Malay UMNO party to deal with the concerns of ethnic minorities. The SA has also had a chilling effect on Asian commentators. The absence of a broad representation of ideas freely expressed by political opponents and the lack of a robust media undermine some of the fundamental tenets of a robust democracy.194 Aside from restrictions on free speech, the role and independence of the judiciary in Malaysia has been severely restricted in the aftermath of the notorious constitutional crisis in 1988.195
Despite Malaysia’s history as a pseudo-secular state196, recently there have been suggestions by the ruling UMNO party that Malaysia is and/or should formally become an Islamic State.197 Due to the emerging Islamic movement in Malaysia and the growing influence of the Islamic faith amongst members of the executive, legislative and judicial branches of government, the pseudo-secular nature of Malaysia has become increasingly questioned. This presents a challenge for democratic values to be manifested in Malaysia to the extent such values have been embraced in the liberal democratic nations of the US and Australia.
Liberal democracy includes commitment to the ‘rule of law’,198 a separation of religion and state, free political expression and impartiality and independence of the judiciary. These features of Western liberal democracies are not evident in many Islamic states.199
Former Prime Minister of Malaysia Mohammed Mahathir (‘Mahathir’) maintained a constant dim view of Western notions of human rights. Notwithstanding widespread ratification by many countries globally of the ICCPR, Malaysia has refused to ratify this important international human rights treaty on grounds of cultural relativism.200 It is not particularly surprising that Malaysia has only specifically accepted less than ten International Human Rights Conventions.201 Political leaders and the judiciary in Malaysia have historically been resistant to emerging international human rights norms, which such norms are viewed as encroachments on state sovereignty and national identity. As noted previously, differences in historical development and independence from the British empire has also resulted in less emphasis placed on certain democratic principles in Malaysia , such as separation of powers and judicial independence and impartiality which have for the most part only been rhetorically embraced by the ruling party for over twenty five years.202
Former Deputy Prime Minister Anwar of Malaysia served as Finance Minister in Malaysia and was touted as the successor to Prime Minister Mahathir. Their relationship was initially a cordial one. However, over time, Anwar was increasingly placed in the situation of having to defend and embrace Mahathir’s policies of progressively placing greater restraints on freedom of the press, subsuming the judiciary under legislative control, curbing public protests and reinforcing provisions of the ISA relating to detention without trial for persons considered to be a threat to national security, thereby curbing transparency in governance.203 The rift between Anwar and Mahathir grew wider with the publication of Anwar’s book entitled ‘The Asian Renaissance’ in which he reprimanded the Prime Minister for relying on Asian values as a guise for instituting repressive policies that deprive individuals of fundamental civil liberties.204
Subsequently, the two men advocated different economic policies in the middle of 1997 in relation to the most horrific economic crisis faced by Malaysia since gaining independence.205 Some commentators attributed the financial crisis to several factors, including unsound economic strategies as well as structural causes combined with sheer panic which led to a draining of capital from the country.206
Anwar advocated pursuing policies consistent with the mandate of the International Monetary Fund while Mahathir supported more isolationist policies to insulate Malaysia from the encircling crisis.207 At first, the country responded to the mandate of the IMF for dealing with the Asian economic crisis. This included a contracting fiscal policy, lower government spending and increasing interest rates.208 These policies arguably led to greater economic peril. In response to the worsening economic situation, the government consulted with several hundred organisations and individuals to set in place a plan of action to rescue the economy that would take into account the particular social and cultural conditions distinctive to Malaysia.209 These measures were diametrically opposed to the blanket recommendations of the IMF for dealing with such crises, including reducing interest rates, increasing government spending on key public sector services and implementing rigid restraints on currency exchange and flow of capital out of the country.210 By the beginning of 2000, the Malaysian economy had recovered. It is unclear as to the factors contributing to the improvement in Malaysia’s economy.211 Nonetheless, the difference in approaches to solving the economic woes of Malaysia was one key manifestation of the row between Anwar and Mahathir.212
Anwar levelled charges of cronyism and corruption and demanded a more open-minded government and robust media free from intermeddling by the ruling elite.213 Tension between the two reached a climax during a regional economic crisis in 1997-1998.214 Anwar’s accusations drew tens of thousands of supporters.215
In May 1998, a book was published by one of Mahathir’s supporters, containing sensational and explicit allegations concerning Anwar’s sexual activities and corrupt practices.216 Prime Minister Mahathir subsequently dismissed Anwar from his positions in Cabinet as well as from his leadership role in the ruling UMNO party (United Malays National Organization).217
Anwar gave one final speech to a crowd estimated between 100,000-200,000 people on 20 September 1998 before the formal end of the Commonwealth Games near the National Mosque. He accused Mahathir of engaging in a conspiracy to destroy him.218 Significantly, Anwar was formally charged on 22 September 1998 in the civil courts of Malaysia. He could have been criminally charged by the Islamic syariah courts which require a much higher standard of proof to establish a guilty verdict. Anwar was jailed in late September 1998 initially as a threat to national security.219
Anwar pleaded innocent to the charges against him.220 Anwar was later sentenced to a six year prison term in 1999 relating to four charges of corruption.221 Anwar was subsequently charged and found guilty of sodomy after a trial lasting more than one year that ended in July 2000. Anwar was sentenced to a nine year prison term by the Malaysian High Court.222 Anwar’s term of imprisonment was not to be served concurrently but rather continuously after he completed serving his six year prison term on corruption charges.223
Obendorf has examined the links between sexuality and existing international dialogue through the prism of the proceedings and subsequent incarceration of Anwar.224 The charges of sodomy levelled against Anwar came to symbolize a divide between Western intermeddling and resistance by virtuous non-Western Malaysia both to the forces of economic globalization and domestic dissent.225 Mahathir was influential in determining suitable distinctive Malay conduct and social character. These characteristics included erudition, hard work, obedience to authority, reliability, and devotion to Islam.226 The construction of Malay subjectivity placed special importance on procreative acts of sexuality and an absolute rejection of any other demonstrations of sexuality or sexual behaviour, particularly homosexual acts of sodomy.227 The discursive prohibitions against homosexuality and sodomy were used to establish and underscore the decadence of the West and the sexual morality of Malaysia.228
In 2003, Prime Minister Mahathir made a nationally televised speech which contained numerous anti-gay statements. He alleged Western values posed a threat to traditional values in Malaysia. He targeted Western films for criticism, saying: ‘… they permit homosexual practices and accept religious leaders with openly gay lifestyles. They are very angry – especially their reporters, many of whom are homos – when we take legal action against these practices’.229 Mahathir also said if a gay British cabinet minister visited Malaysia with his boyfriend, both would be expelled from the country.230
Subsequently, at a Human Rights Conference in Malaysia in 2005, Mahathir attempted to provide justification for the persecution of Anwar based on his alleged sexual preference. According to Mahathir, it was intolerable for Malaysia to allow a homosexual to serve as a member of Cabinet, particularly in circumstances, such as these, where Anwar had the potential to later become the Prime Minister of Malaysia.231 He also emphasized that the acts of homosexuals are criminal and defy the fundamental tenets of Islam which made Anwar unsuited for assuming any political role in Malaysia, particularly the post of Prime Minister.232
The perceived threat to the state from the homosexual other was important to Mahathir in fashioning Malay gendered subjectivities. He believed in rigorous adherence to the strictures of heterosexuality, combined with a need to procreate and convey these heterosexual social norms maternally to the next generation of children. The monitoring of sexual activity in this way with its emphasis on maintaining heterosexual norms reveals the perceived need on the part of Mahathir to maintain these heterosexual norms as an important element in protecting the economic and political interests of the State. By contrast, Mahathir viewed the homosexual other as undermining social cohesion and ultimately the ability of the nation-state to endure in its present form.233
Indeed, the public protests by Anwar and his supporters followed by the charges of sodomy reflected a perception that nothing short of the very continued existence of the state of Malaysia was at stake. Yet, as Obendorf points out, the attempt to draw discrete boundaries between the decadent West and virtuous Malay society is misplaced. In reality, the similarities in sexual practice between Western and Malay society are greater by far than the alleged dissimilarities. He reasons convincingly that possible clashes between different units within society or different cultures surface most prominently where the commonalities far exceed the differences and such confrontations operate as a medium through which to shape, champion and uphold distinctions. This has certainly been the case in the Middle East and in other global contexts, such as Rwanda and India.234
Portraying sodomy as situated somewhere else helps foster an understanding of Anwar’s ejection from a position of authority since his alleged acts of sodomy are inherently irreconcilable with his assumption of leadership in religiously observant Malaysia.235 It has been suggested that Mahathir used the sodomy laws against Anwar for political reasons; although the law had existed for a long time, it was rarely enforced.236 As Anwar’s wife has stated: ‘in …conservative Muslim Malaysia, [the sodomy charges] would more tarnish his image and also tarnish the family honour’.237
Many observers agreed the criminal allegations against Anwar were politically charged and reflected an attempt by a ‘vengeful government and politically manipulated judiciary to silence a popular opponent’.238 Once Anwar had been categorised as a ‘sodomite,’ such characterisation would attach to all his subsequent activities and policies like superglue.239 As Obendorf states:
Far from entailing mere loss of prestige or moral credibility, being subjected to such metaphorical meanings coded Anwar’s identity, politics, and loyalty to party and country as questionable, even traitorous. These multiple and opaque meanings have long been ascribed to sodomy. … Goldberg identifies both issues of personal immorality, falsity, and degeneracy and ideas of national betrayal, questionable loyalty, and belonging intrinsically to the nation’s other as all simultaneously finding expression within the categories of sodomy and the sodomite.240
The charges of sodomy against Anwar certainly served the function of heightening homophobic reactions in Malaysia.241 Abdul Kadir, Head of Education and Research at Malaysia’s Islamic Affairs Department, described homosexuality as a ‘sin worse than murder’.242 A pro-Mahathir anti-gay group was formed after Anwar’s incarceration. The purpose of this group was to educate the populace on the heretical nature of sodomy as an undeniable transgression of Islamic practice. The recent prosecutions of sodomy demonstrated that homosexuality was perilously escalating out of control and threatening to destroy the fabric of Malaysian society.243
The portrayal of Anwar by Mahathir and others clearly served important symbolic political and nationalist functions. As Obendorf has observed, sodomy came to symbolise intermeddling by the West and resistance both to the forces of economic globalization and domestic dissent.244 In the context of Malaysia, it is thus easier to understand the targeting of Anwar as a response to globalization, the international community’s condemnation of Mahathir’s increasingly dictatorial rule and his denunciation of the IMF’s suggestions for dealing with the encircling Asian economic crisis. Obendorf refers to Mahathir’s actions as an affirmation of his ‘own hypermasculinity’ vis-à-vis his domestic population as well as the international community. In striking contrast, Anwar’s support for the policies of the IMF and embrace of Western democratic principles, such as a robust and independent press and judiciary and greater personal civil liberties were consistent with the negative metaphorical connotations attached to sodomy by Mahathir, including a dubious allegiance and disloyalty to the ruling UMNO Party, not to mention the State of Malaysia. Obendorf suggests that the sweeping connotations associated with sodomy help explain the steps taken by Anwar’s followers to restore his reputation. This included focussing on the ridiculousness of the charges and on his being completely straight.245 This reflects also the homophobia of his own supporters. There was evidence suggesting numerous governmental witnesses were coerced and given incentives into providing false testimony.246 Notwithstanding an avalanche of inconsistent and unreliable testimony from his accusers, Anwar was nonetheless still convicted.247 The year of the alleged sexual assaults changed twice before the commencement of the trial, and the actual dates of the alleged acts changed as well. Judge Arifin Jaka took judicial notice of the almost daily testimonial changes of this witness. Nonetheless, he later described the testimony of this witness as ‘unimpeachable.’248 The changing evidence concerning the alleged dates of the offence allowed to be introduced into evidence by Justice Arifin at the trial raised genuine concerns about procedural fairness and highlighted scepticism amongst Malaysians about the impartiality and independence of the judiciary, which such views had steadily solidified since 1988 with the dismissal of high level judges followed by contentious appointments as well as promotions of members of the Bench.249 The Anwar trial eroded faith amongst the populace concerning the dispensation of criminal justice, thereby undermining public confidence in the genuine ability of the judiciary to uphold the ‘rule of law’.250
The charges against Anwar actually brought to the surface gay issues and rendered significantly more noticeable lesbian and gay individuals while simultaneously contributing to suppressing any moves to foster greater societal tolerance of gays not to mention repealing the laws of sodomy.251 Over time, the high profile nature of the Anwar case made many Malaysians aware that the entire saga reflected poorly on all parties involved, possibly causing substantial damage to Malaysia’s standing in the international community.252 Mahathir’s actions helped draw international attention to as well as crystallize critical commentary by members of the legal profession as well as international human rights groups which universally condemned the sentencing of Anwar. Amnesty International characterised Anwar as a prisoner of conscience, stating:
The sentences … highlight the vulnerability of all Malaysians to selective, politically motivated persecutions using restrictive and discriminatory laws – including those relating to free speech, to peaceful protest, and in this case, to sodomy. [Amnesty] considers … Anwar … was … [tried] because of his dissenting political activities and the challenge he posed to government leaders.253
Nonetheless, the Anwar saga produced important changes within Malaysia. As Obendorf explains:
Unquestionably, issues of homosexuality and the metaphorical meanings attached to them are now established as part of political discourse in Malaysia. But it is also significant that issues of sexual difference do not seem to have the same capacity to shock, or even to carry the metaphoric meanings they did prior to the allegations against Anwar. … [D]iscourses of sodomy somehow became entwined with the debates over the impact of globalization, westernization, and postcolonial strategies of resistance. … Perhaps the most productive line of enquiry is to ask how the figure of Anwar Ibrahim-disgraced former politician, leader of a popular reformist political movement, and convicted sodomite-came to stand for, and humanize, many of the fears that Malaysians (both his supporters and his detractors) had over issues such as local political reform, nationalism, westernization, and globalization[?] … The metaphoricity of sodomy mapped onto the figure of Anwar Ibrahim provided Malaysians-whether supporters of Anwar or of Mahathir-with a set of intellectual tools and discursive meanings by which to make sense of far broader issues surrounding the impact of global and national change and exchange. … [The Anwar case] provides a window into the ways in which everyday Malaysian life continually references, consumes, resists, or embraces international flows, and the ways in which sexuality is one of the first categories to which individuals turn in order to process their understandings of those flows and their effects on Malaysian culture and society. … The metaphor of sodomy … acts as a powerful engine of social and cultural change, mobilizing social forces, providing a rallying point for internal dissent, and even offering ways of reading and understanding the ways in which local societies relate to the international.254
Perhaps as a reflection of such political, social and cultural changes, after serving almost six years in prison, Anwar’s appeal against his conviction for sodomy was overturned by two judges of the Federal Court of Malaysia in 2004.255 Though finding evidence that Anwar was involved in homosexual activities, the Federal Court of Malaysia overturned the conviction in 2004 on the basis the violation of the sodomy laws was not proven beyond a reasonable doubt by the prosecution.256 Nonetheless, acceptance of homosexuality in Malaysia remains very low though the Anwar trial and an increase in the incidence of HIV/AIDS has led to ‘slightly more open recognition of homosexuality than had occurred earlier’.257 This has led to equating gay with AIDS, even though most of the cases of HIV/AIDS occur overwhelmingly in Malaysia amongst intravenous drug users who account for three quarters of the cases. According to governmental statistics, the transmission of HIV amongst homosexuals is extraordinarily small – just over 1% while the rate of transmission of HIV amongst heterosexuals is above 13%. The association of homosexuality with AIDS in this way fosters the perpetuation of gay stereotypes and internalized homophobia. On the other hand, the relative support of the government of Malaysia of HIV/AIDS organisations (most of which are NGOs) has been crucial in supporting a sense of community amongst LGBT individuals.258
Anwar and an opposition alliance (which included Anwar’s Peoples Justice Party) have experienced a political resurgence in recent nation-wide elections held on 8 March 2008. Malaysia’s ruling party has governed since achieving independence in 1957. In these recent elections, the ruling party failed to achieve a two-thirds majority in Parliament. The opposition alliance gained control of five states in the federation and one third of Parliament.259 The previous charges and trial of Anwar for sodomy played no role in the recent election. Several other factors aside from allegations of engaging in acts of sodomy produced the election results.260 This arguably demonstrated at least in part the unwillingness to malign the homosexuality ‘other’ in Malaysia for political purposes. It also demonstrated for a short period of time the previous trial on charges of sodomy was insufficient to destroy the political aspirations of Anwar. The failure to denigrate the homosexual ‘other in the recent elections arguably shows there are many other factors over which the majority of Malaysians are concerned, including inflation, increasing crime rates and perceptions of corruption-a theme raised by Anwar before he was charged and tried for corruption and acts of sodomy. Perhaps the overturning of Anwar’s sodomy conviction as well as recent developments in Malaysia also reflect the impact of globalization, with all its varied normative understandings, and the growing interaction between evolving international human rights norms and domestic attitudes, possibly resulting in a greater modicum of tolerance of homosexuality and less of a discrepancy between the rhetoric and reality of such Western liberal democratic legal principles as procedural fairness as well as judicial impartiality and independence.261 Unfortunately, recent developments suggest such conclusions are overstated at least in the short term. Anwar recently sued for defamation a male assistant who filed a complaint with the police over alleged acts of sodomy. Anwar has since taken refuge in the Turkish embassy due to fear of assassination and out of a concern that further trumped up charges of violating the acts of sodomy would provoke widespread public outrage and create political instability in the nation.262 Anwar subsequently left the residence of the Turkish Ambassador after receiving government assurances for his personal safety.263 There had been a ban on Anwar seeking political office until after April 2008. After the disastrous results for the ruling party in the recent nation-wide elections, Anwar was seeking to enter Parliament via a by-election, with the prospect of ultimately becoming the next Prime Minister.264 As a result of the circumstances, Anwar initially decided to defer a planned announcement to run as a candidate for Parliament in a by-election.265 Anwar asserted that this latest political manoeuvre was ‘clearly a desperate attempt by the…regime to arrest the movement of the Malaysian people towards freedom, democracy and justice’.266 Anwar spoke at public rallies on 3 July, and again on 8 July 2008 to 20,000 supporters, charging the ruling governing elite with many of the problems facing the country, including escalating prices of fuel, corruption and lack of compassion.267 Perhaps due to these developments, the current Prime Minister Badawi announced he will not serve his full term in office. This means the current Deputy Prime Minister would ordinarily become his successor as Prime Minister. However, the current Deputy Primer Minister, Mr Najib, has been allegedly instrumental in the latest attempt to sensationalise allegations of sodomy against Anwar to prevent him from challenging his potential future leadership in the country. Mr Najib has himself been accused of having had an affair with a Mongolian woman who has since been murdered. A close associate of Mr Najib has been accused of involvement with the murder of this woman. It has also been suggested in media reports that Mr Najib may have engaged in acts of sodomy (which are non-gender specific in Malaysia) with the murder victim.268 The political opposition in Malaysia filed a motion in Parliament to debate the issue of the loss of public confidence in the ruling government.269 The speaker of Parliament would not allow the motion to be debated.270
In late July, Anwar’s wife (Dr Wan Azizah Ismail) the president of Parti Keadilan Rakyat (PKR) stood aside from her seat in Parliament in order to allow Anwar to run in a by-election scheduled for 26 August 2008.271 On 7 August 2008, Anwar was formally charged in the Sessions Court with sodomy and faces up to 20 years imprisonment.272 He was released on bail to campaign for the Parliamentary seat vacated by his wife.273 In early July, polling data suggested merely 6% of the respondents believed the accusations of sodomy were genuine: a firm majority of Malays believed that the accusations of sodomy were politically inspired.274 The election results suggest that the new charges of sodomy had little, if any, impact on the outcome of the by-election. Anwar received approximately 66% of the votes cast, notwithstanding alleged attempts to manipulate the outcome of the by-election,275 and has now been sworn in as a Member of Parliament (and formally appointed as Opposition Leader).276 As Anwar observed following his larger than expected victory:
The message is clear, we in Permatang Pauh and in Malaysia, we demand change for freedom and justice … [w]e want an independent judiciary, we want the economy to benefit the vast majority not the corrupt few …277
These developments demonstrate there is arguably a continued willingness to use fear of the homosexual ‘other’ for political purposes in an effort to destroy the rising political popularity and aspirations of Anwar. The recent events in Malaysia are retrograde and dampen in the short term optimism amongst international human rights advocates to foster a greater understanding and respect for the basic international human rights principles of privacy, dignity, autonomy and equality – as reflected in the freedom to form intimate associational homosexual relationships. The events have equally potentially troubling implications for a more robust political process in which allowance of dissenting voices from the political opposition are openly embraced. Advocates of certain values in liberal democracies can only hope these events do no spiral perilously downward to repeat the mistakes of the past when principles of procedural fairness, judicial independence and impartiality as well as the rule of law were simply cast aside expediently for the sole purpose of maintaining a hold on political power. Some commentators have suggested the latest allegations cast doubt on the prospect that Malaysia will represent an exemplar for a smooth transition for democratic change through peaceful means.278 The passage of time will reveal whether the hopeful signs of change are without merit. Nonetheless, the author believes regressive moves by the Malaysian government will only serve to strengthen the movement for greater recognition of freedom to enjoy one’s own homosexuality. Public reaction to the recent events certainly provide hope that fear of the homosexual ‘other’ is a ploy that seems at least facially to have been disempowered as reflected in the recent polling data and by-election results discussed above. The information suggests that virtually no one believes the accusations of sodomy are genuine and a clear majority believe them to be politically inspired! It is unclear if Badawi’s recent announcement of his plans to step down as Prime Minister and hand over power to the current Deputy Prime Minister will mollify an increasingly dissatisfied populace and whether Anwar will ultimately prevail in his attempt to realise his political aspirations.279
Assuming political activists in Malaysia are intent on repealing the sodomy laws, there is no available international legal machinery for them to employ to achieve these aims since Malaysia is neither a signatory to the ICCPR nor to the Optional Protocol. Homosexuality has traditionally been portrayed in both Western and non-Western countries as an evil threat to social, cultural and religious norms as well as the stability of existing political order. It is unrealistic to expect political or legal norms to change without a concomitant change in political leadership and educational initiatives fostering an understanding of sexual orientation and the importance of extending basic human rights standards of privacy, personal dignity, autonomy, and equality to prohibit discrimination on the basis of LGBTI orientation.
One can find both encouraging and discouraging signs for the prospects of greater domestic application of international human rights standards in Malaysia based on recent developments. Though Malaysia has had a national identity card since prior to achieving independence, in September 2001, the government issued citizens with a multi-use ‘smart identification card’ otherwise known as ‘MyKad’.280 The issuance of MyKad has implications for information privacy in that very delicate information of a personal nature is maintained, including voting information, health information (including information on any major sustained illness) and marital status. It is not difficult to envision the ways in which information on MyKad could be used to discriminate against lesbians and gay men, particularly those with HIV. Given the range of information contained in these databases and the failure of the existing laws to protect the information privacy of individuals, this development is discouraging for greater domestic application of the basic human rights principles of privacy, dignity and autonomy.281 On the other hand, the recent election campaign and results as well as public reaction to the retrograde politically motivated actions of the current ruling party provides a glimmer of hope that there might be greater scope for the potential future domestic application of the above mentioned basic human rights, including freedom from discrimination on the basis of sexual orientation. It is unclear how events will continue to unfold in Malaysia. For this reason, it is not yet possible to draw any conclusions about the prospects for the future.
The judiciary in Malaysia have at their disposal the fundamental rights provisions contained in Part II of the Constitution of Malaysia which could be used as a source to overturn the sodomy laws on constitutional grounds.282 There are provisions in the Constitution providing for the right to form associations and for equal protection of the law.283 Certainly, the right of association could be construed to include the right to form intimate associations in the privacy of one’s home. This was the reasoning used by the US Supreme Court in Lawrence.284 This would certainly not be without precedent. The judgments of the US Supreme Court have historically been cited in foreign legal judgments.285 Even the US Supreme Court has, at times, demonstrated a willingness to rely on foreign legal sources, such as four decisions of the European Court of Human Rights expressly relied upon in reaching the decision in Lawrence.286 Also, in some jurisdictions, universalist norms of human rights are having impacts on domestic courts.287 One of the justices in the Toonen case held that certain sodomy laws in Australia violated the equal protection provisions of the International Covenant on Civil and Political Rights.288 As one commentator has stated:
Those who embrace this new transnational judicial conversation have an optimistic faith that in a multicultural world with different legal systems, political traditions, and moral and cultural values, the universalizing language of international and comparative human rights will continue its march towards the creation of a cosmopolitan community of values.289
Even this commentator’s seemingly tolerant embrace of a ‘transnational jurisprudence’ has not been matched in all contexts, particularly in relation to homosexuality and the amendment of sodomy related laws in Singapore. In the debates in the Singapore Parliament on whether the criminal codes should be amended to decriminalize homosexual activities, Professor Thio Li-ann demonstrated she is not prepared to allow for the universalizing language of human rights to apply in the context of homosexual orientation. While some of her arguments touched on themes similar to those raised in the dissenting opinion in Lawrence, other comments reflect fear of the homosexual ‘other’ and a refusal to embrace the basic human rights principles of personal dignity and autonomy:
Singapore is an independent state, we can decide our own laws; we have no need of foreign or neo-colonial moral imperialism in matters of fundamental morality. … [W]hile homosexuals are a numerical minority as a social fact, there is at law no such thing as ‘sexual minorities’. Activists have coined this term to draw a beguiling but fallacious association between homosexuals and legally recognised minorities like racial groups. Race is a fixed trait. It remains controversial whether homosexual orientation is genetic or environmental, perhaps both. There are no ex-Blacks but there are ex-gays. The analogy between race and sexual orientation or preferred sexual preferences, is false. … ‘Sexual minorities’ and ‘sexual orientation’ are vague terms covering anything from homosexuality, bestiality, incest, paedophilia. Do all these minority sexual practices merit protection? … Anal-penetrative sex is inherently damaging to the body and a misuse of organs, like shoving a straw up your nose to drink. … Opposite-sex sodomy is harmful, but medical studies indicate that same-sex sodomy carries a higher price tag for society because of higher promiscuity and frequency levels. … Heterosexual sodomy, unlike homosexual sodomy, does not undermine the understanding of heterosexuality as the preferred social norm. … [T]o protect homosexuals, some countries have criminalised not sodomy, but opposition to sodomy, making it a ‘hate crime’ to criticise homosexuality. This violates freedom of speech and religion; will sacred texts that declare homosexuality morally-deviant, like the Bible and Quran, be criminalised? Social unrest beckons. Such assaults on constitutional liberties cannot be tolerated.290
Dr Thio raises the colonising argument about Western countries trying to impose their decadent non-liberal moral views on non-Western countries:
As fellow citizens, homosexuals … have no right to insist we surrender our fundamental moral beliefs so they can feel comfortable about their sexual behaviour. We should not be subject to the tyranny of the undemocratic minority who want to violate our consciences, trample cherished moral virtues and threaten our collective welfare by imposing homosexual dogma on right-thinking people. … People with principled moral objections to the homosexual agenda are tarred and feathered ‘homophobes’, ‘bigots’, to shut them up. This strategy is unoriginally imported from foreign gay activists, which stifles creative thinking and intellectual enquiry.291
The Supreme Court of Malaysia has been willing to rely on certain rights provisions to foster the protection of indigenous property rights and to define the content and parameters of the right to life.292 At the same time, the Supreme Court of Malaysia has not yet demonstrated any willingness to invoke any of the fundamental rights provisions to protect religious freedom as reflected in the Lina Joy case, let alone freedom with regard to LGBTI orientation. Therefore, it is unrealistic to expect the judiciary to overturn the sodomy laws of Malaysia at the present time. The refusal to recognise religious freedom in the Lina Joy case not to mention the much more contentious application of basic human rights standards to homosexuals reflects resistance to the application of these core principles in all contexts. It is important to recognise that earlier historical events in the post-independence era have shaped the expression of human rights in Malaysia.293
IV. Comparative Dimensions
Emerging international norms of human rights have been increasingly extended since the early beginnings of the human rights movement after the Second World War.294 Prohibiting discrimination on the basis of sexual orientation is gaining greater recognition as another potential avenue in the growth of the international human rights movement. Nonetheless, the extension of the human rights movement to cover sexual orientation continues to encounter resistance in both international and domestic environments.
The historical experiences with the sodomy laws in the US, Australia and Malaysia provides an insight into the evolution of the human rights movement globally and has been associated with the three main aspects of change previously identified by Graziadei: law resulting from a desire to yield better economic performance; change brought about by a desire to identify with progressive trends in other countries; and change brought about through hostility.295 The repeal of the sodomy laws in Australia and the US and the failure to repeal them in Malaysia are associated with the three main aspects of law reform identified by Graziadei.
The repeal of such laws in the US and Australia reflect advances in the international human rights movement and the growing recognition in international and domestic legislative and judicial fora that freedom to enjoy one’s own homosexuality is a crucial aspect of other basic principles of human rights, such as privacy, personal dignity, autonomy and equality.296
In the Australian context, a combination of factors blended to facilitate the removal of the sodomy laws in Tasmania. First, Australia is a signatory to two important international treaties, one of which enables citizens to apply to a United Nations body for a determination as to whether their rights under another important international treaty (ICCPR) have been transgressed. This international legal machinery was helpful to Toonen, a gay rights political activist in Tasmania. Toonen was determined to address issues of homophobia in his home state. This included the need to begin with the repeal of the sodomy laws and the societal homophobia they perpetuate. The Keating Labor government did not impede Toonen’s move to repeal the sodomy laws by not challenging the admissibility of Toonen’s claims. Certainly, Toonen and arguably the Keating Labor government were ahead of social and legal norms in Tasmania at the time Toonen initially challenged the sodomy laws. The Keating Labor government signed many international treaties during his term, most notably the Optional Protocol to the ICCPR. This demonstrated a willingness to subject internal domestic laws to international scrutiny so as to be able to take a leading role in defining progressive trends in the international community. This international human rights body ultimately enabled the domestic sodomy law to be subjected to the progressive trends of the international community as reflected in the decisions of the UNHRC. The Commonwealth Parliament passed legislation to comply with its obligations under the ICCPR as such obligations had been construed by the UNHRC which resulted in the ultimate repeal of the sodomy laws in Tasmania, the last state in Australia to legalise homosexuality.297
Once the laws were ultimately repealed, legal norms (at least in Tasmania) progressed to such an extent that it now has some of the most enlightened legislation and policies in Australia on dealing with issues of homophobia in a range of areas. By the time the sodomy laws were eventually repealed in Tasmania in 1997, social attitudes toward homosexuality had improved. This state was nevertheless identified in a 2003-2004 survey as amongst the least progressive States in Australia with regard to attitudes about homosexuality. As previously mentioned, this is not particularly surprising given Tasmania was the final state in Australia to legalize homosexuality. To the present time, according to a recent article in one of the leading newspapers in Australia, homophobia and violence often associated with fear of the homosexual ‘other’ (which such fear can be exacerbated in the short term with public visibility and activism for lesbian and gay freedoms), remain a persistent problem in Tasmania (particularly in the rural areas).298 However, social attitudes regarding homosexuality in Tasmania and Australia generally have most certainly improved since the sodomy laws were initially challenged by Nick Toonen, as reflected in the same 2003-2004 survey conducted by the Roy Morgan Institute.299
Subsequent legal developments in Australia were regressive for gay rights as reflected in the amendments to the federal Marriage legislation which entrenched common law rules prohibiting the recognition of same sex couples as married. This might have exacerbated homophobia in the short term for political purposes in an upcoming federal election by heightening moral sensitivities and drawing on sentiments amongst some in the populace that gay marriage would undermine the social and cultural fabric of the family unit.300 This might explain in part the findings of the Roy Morgan survey reflecting the persistence of homophobia throughout Australia, including especially in Tasmania.
In 2007, recognising the disparity in the application of a wide range of laws relating to financial maters and laws pertaining to the workplace between same sex and opposite sex couples, the HREOC report identified 58 areas of discrimination and recommended such areas be legislatively addressed. The opposition ALP embraced the recommendations contained in the HREOC report prior to the recent federal election which may have contributed in part to their electoral success. The ALP policy reflected changing tolerant social norms on homosexuality, which such changes have, since the election, been recognised by the now Liberal opposition party. The desire to follow progressive trends in the international community and to acknowledge the economic contribution of same sex couples to the general economic welfare of the country has contributed to this law reform.301
One aspect of globalization, as previously canvassed, has been the emergence of a certain ‘transnational jurisprudence’ in which ultimate courts have increasingly resorted to international human rights law in the course of constitutional interpretation.302 In the US context, the Supreme Court initially refused to overturn the sodomy statutes in 1986 by a 5-4 split. The majority and dissenting opinions reflected both homophobic and heterosexist norms prevailing at the time. In 2003 (when the sodomy laws were ultimately repealed at a federal level), the Supreme Court in Lawrence v Texas was citing decisions of the European Court of Human Rights in ultimately repealing the laws on sodomy at a federal level. This was certainly not uniformly embraced by all members of the Supreme Court. Indeed, it actually resulted in criticism from the three dissenting members of the Bench. Nonetheless, changes in Supreme Court decision making on this issue parallel the progression of human rights standards in Western Europe and in the UNHRC which had already recognised in much earlier cases laws on sodomy violate basic civil rights of homosexuals. The right to personal dignity and autonomy as well as the freedom to form intimate associational homosexual relationships must also reflect a willingness to avoid the targeting of homosexuals with symbolic psychological and physical violence (as exemplified in the brutal murder of Matthew Sheppard in Wyoming in 1998 because of his homosexual orientation, and by the emerging state-wide movements to eliminate all legal protections against discrimination of homosexuals as demonstrated in the factual circumstances giving rise to the 1996 Romer v Evans Supreme Court case). The majority of justices in Lawrence v Texas perceived the repeal of the sodomy laws were needed to avoid the singling out of homosexuals for disfavoured treatment. The majority judgment reflected the growing interaction between international human rights norms and domestic law.303 The decision in Lawrence v Texas reflects this growing trend toward ‘transnational jurisprudence’.304
In the US context, Presidential leadership, educational initiatives, enhanced social understanding of sexual orientation provided by medical experts, combined with expanding notions of individual liberty and privacy interests came to be reflected in greater social acceptance and tolerance of homosexuality. These social norms, coupled with extending international human rights norms to encompass non-discrimination on the basis of sexual orientation, in turn, filtered into constitutional decision-making as reflected in the Romer and Lawrence decisions. As Graziadei explains: ‘[i]n the public sphere, the ongoing elaboration of human rights instruments is a fundamental aspect of this general movement and touches upon constitutional law at the national level’.305
Failure to repeal the sodomy laws in Malaysia is reflective of the resistance emerging international human rights norms have encountered in domestic jurisdictions in which political leaders and the judiciary view such developments as encroachments on state sovereignty and national identity.306 In Malaysia, resistance to the laws on sodomy was arguably further enhanced to maintain a hold on political power and strengthen resistance to the perceived negative economic consequences for Malaysia of globalization and its associated decadent Western neo-liberal values, including the failure to denounce sodomy and all of its associated negative connotations with homosexuality.
In Malaysia, some of the political leadership under Mahathir arguably reflected and reinforced perceived religious, cultural and social taboos against homosexuality and its manifestations, including acts of sodomy. Mahathir asserted that embracing Western globalization would result in the denigration of religious, cultural and social taboos against homosexuality. It is arguable that Mahathir relied on these taboos for political reasons to strengthen his assertion that the best resolution to the Asian economic crisis was a resistance to the forces of globalization.
Developments in Malaysia307 demonstrate there is arguably a continued willingness to use fear of the homosexual ‘other’ for political purposes in an effort to destroy the rising political popularity and aspirations of Anwar. The recent events in Malaysia are regressive and diminish in the short term optimism amongst international human rights advocates to foster a greater understanding and respect for the basic international human rights principles of privacy, dignity, autonomy and equality – as reflected in the freedom to form intimate associational homosexual relationships. The events have equally potentially troubling implications for a more robust political process in which allowance of dissenting voices from the political opposition are openly embraced. Advocates of certain values in liberal democracies can only hope these events do no spiral perilously downward to repeat the mistakes of the past when principles of procedural fairness, judicial independence and impartiality as well as the rule of law were simply cast aside expediently for the sole purpose of maintaining a hold on political power. Some commentators have suggested the latest allegations cast doubt on the prospect that Malaysia will represent an exemplar for a smooth transition for democratic change through peaceful means.308 It will be interesting to witness how developments in Malaysia progress. The passage of time will reveal whether the hopeful signs of change are without merit. Nonetheless, the author believes such moves by the Malaysian government will only serve to strengthen the movement for greater recognition of freedom to enjoy one’s own homosexuality. Public reaction to the recent events certainly provide hope that fear of the homosexual ‘other’ is a ploy that seems at least facially to have been disempowered as reflected in the recent polling data and by-election results considered earlier in the piece reflect that an (increasing) minority believe the accusations of sodomy are genuine and a clear majority believe them to be politically inspired! Badawi’s decision not to serve out his full term as Prime Minister suggests the ruling elite is aware of dissatisfaction amongst the populace on issues of genuine concern to all Malaysians.
In all three contexts, advocates of freedom with regard to LGBTI orientation have been at the forefront of resistance in part because we remain at the fringe of the human rights movement.309
The situation in Malaysia is in some respects similar to the factual circumstances fostering both human rights and constitutional milestones in the US and Australia. All three instances have actually served to strengthen the international human rights movement for recognition of freedom with regard to LGBTI orientation.
Dannemann has accurately pointed out that calls for standardization of a law requires a full appreciation of the milieu within which such a law functions in each jurisdiction.310 It is imperative to evaluate these differences and how repeal of the sodomy laws have been and/or might be received in each context. The author is aware that arguing for universalist norms on any topic (particularly in relation to homosexuality) subjects him to criticism for maintaining a certain world view that might promote individual rights and certain values such as diversity, privacy, dignity, autonomy and equality without taking into account perceived communal interests or fundamental aspects of religious views held in all three countries. Since the 19th century, homosexuality has been portrayed in fundamentalist religious thought in Western countries as a deplorable act.311 This can explain partially the historical resistance to reforming the sodomy laws in Australia and the United States. In Malaysia, Islam is the official religion of the Federation and human rights are perceived in many Islamic contexts as anything but dispassionate and unbiased.312 Even if the sodomy laws were repealed in Malaysia, it would be unrealistic to expect a significant instantaneous diminution in the fear of the homosexual ‘other.’
On the other hand, one of the purposes of comparative scholarship is to gain more accurate information313 and facilitate greater ‘cross fertilisation’ between peoples, recognising that ‘stereotyped assumptions about other systems which tend to shape the perception of legal knowledge may well be intensified by increased contact.’314
The author is asserting that diversity (and the acceptance of such diversity by all communities), dignity and autonomy are fundamental aspects of prohibitions on discrimination on the basis of sexual orientation.315 These values should be celebrated as universal virtues in all contexts irrespective of gender, age, educational and socio-economic levels, ethnic, religious, political and legal differences. Certainly, one of the acknowledged aspects of increasing ‘globalization’ is greater sharing of information via the internet between marginalized communities (such as the lesbian and gay communities) and movements between peoples throughout the world than there has been in the past, resulting in different identities within nation states and transcending national borders. This has resulted in a broadening of dialogue on issues of human rights and other related fields (eg religion, sociology, biology, political science and history) and the initiation of certain standards of human rights that extend beyond territorial borders and systems of hierarchy.316 As one comparative methodologist has explained, diversity can be confronting between different nations and to groups (whether marginalized or part of the mainstream) within particular nations: ‘[h]ere the politics of difference becomes a politics of resistance to standardization and a fierce assertion of identity: “the other refuses to disappear: it subsists, it persists, it is the hard bone on which reason breaks its teeth”.’317
From a poststructuralist perspective, the sodomy laws in all three contexts became the location of struggles for social, economic and political influence. According to poststructuralists, subjectivity is generated in a wide range of social, economic and political dialogue. This range of discourse about homosexuality contains meanings which are symbolic because they are at the forefront of battles over power. Aspects of subjectivity are created historically and capable of being altered in social, economic and political discourse. The dynamics of power based on homosexual orientation can be changed arguably through a political struggle over commanding meanings and ideas about homosexual orientation.318* The dominant discourse about the homosexual ‘other’ has been altered to a certain extent by the repeal of the sodomy laws in the US and Australia. Changes in laws and even in the use or non-use of language can over time bring about major changes in the way homosexuals are viewed in a variety of communities and environments affecting individual subjectivity.319 The recent events in Malaysia suggest that discourse about homosexuality continues to be the key location for battles over political power. It appears as if optimism expressed earlier in this piece regarding the unwillingness to vilify the homosexual ‘other’ for political purposes is premature. As events continue to unfold in Malaysia, signs are hopeful that the populace in Malaysia are unpersuaded by such attempts to induce fear of the homosexual ‘other’ for political purposes as reflected in the most recent polling data and by-election outcome suggesting few believe the accusations of sodomy are genuine and a sizeable majority of Malaysians believe the machinations are politically inspired. Anwar’s fear of public protest suggests potential public outrage. Nonetheless, acting in a responsible fashion, he has expressed concern that his supporters maintain calm.320
Even with the repeal of the sodomy laws and assuming arguendo the homosexual other will not continue to be vilified for political purposes in Malaysia, such changes are insufficient on their own to address societal homophobia.
Human Rights Watch (a non-governmental organization) has emphasized the importance of beginning a discourse between those seeking to preserve their cultural traditions and those seeking to advance international human rights norms. Advocates of the recognition of freedom with regard to LGBTI orientation have been subjected to resistance because, as previously pointed out, we are one of many marginalized groups in society arguably at ‘the most vulnerable edge of the human rights movement’.321 We are often portrayed in a variety of discursive fora not as advancers of the virtue of diversity but rather as outsiders eroding state sovereignty and undermining cultural, religious and communal traditions and mores. Discussions between communities concerned with preserving cultural, religious and communal traditions and those interested in advancing domestic application of international human rights norms regarding sexual orientation will take place ‘only if true conservatives, who respect the past because they grapple with its complexities, dismiss the false ideologies of cultural uniformity that exploit sexuality with no other real goal than to reject, exclude and destroy’.322
As the Director of LGBTI rights for Human Rights Watch has observed:
[Parochialism] not only pits ‘culture’ against rights, it paints a somber picture of society in which sexuality – and, implicitly, a range of other human experiences – demands continual and restrictive state scrutiny and control. Against this bleak and onerous vision, rights activists must reassert basic principles of personal freedom; but they must also affirm that human beings require the autonomous enjoyment of their sexualities to lead satisfying, fulfilled, fully human lives. …
… [R]ights activists must see defending sexual rights not as a distraction from their traditional preoccupations, but as a necessary and logical development. Human rights are the possessions of embodied human beings, whose dignity is bound up with the capacity to inhabit and experience their bodies as their own. Everyone deserves the free enjoyment of their sexuality. No one who does not hurt other people should be a prisoner of others’ consciences.323
Like human rights generally, LGBTI freedoms have come a long way. Nonetheless, they still have a long way to go! The historical experiences with the sodomy laws in each of the three jurisdictions are an example of both. As one comparative methodologist explains, it is important not to simplify ‘truths and the complexities of truths … by overlooking the untranslatable’.324
The incidence of hate crimes in the US and Australia motivated by animus based on sexual orientation exemplify the continued existence of some of the ugliest manifestations of homophobia.325 While sodomy laws continue to exist in over 80 member states of the United Nations, sixty countries, such as the US and Australia, have at least at some governmental institutional levels, been able to recognise the contribution of criminal sodomy laws to the perpetuation and amplification of homophobia. Even the repeal of these laws in the US and Australia has not eliminated this social disorder. This demonstrates both the importance and limitations of law reform. There must be wide consultation and education of all communities that transcend national frontiers to foster a greater understanding of basic principles of human rights and the importance of the application of these principles in all contexts.
Though it is laudable that the judiciary ultimately overturned Anwar’s sodomy conviction, it is disconcerting that these laws remain on the books in Malaysia. Mahathir might have had the interests of his population at heart in advocating resistance to the forces of globalization from the West through isolationist policies. However, the means employed to resist the forces of globalization were unfortunate. The sodomy laws were used in a self-serving manner by Mahathir to rally nationalistic and religious fervour in his battle for political leadership against Anwar. In pursuit of his economic and political aims, Mahathir allowed the principles of procedural fairness as well as judicial independence and impartiality to be cast aside. The failure to observe these principles only served to draw international attention to the Anwar trial and exacerbate international criticism over the handling of the case. But it also served to strengthen in many ways the international human rights movement as well as the freedoms of LGBTI individuals.
Several years have now passed since Anwar was released from prison. Malaysia very recently held elections in which the governing authority received the lowest popularity in any election since independence. Repealing the sodomy laws would not represent an embrace of Western decadence portrayed as one of the evils of Westernization and globalization. Rather, it would signal an understanding of the growing importance of sexual identity in international human rights law as demonstrated in Toonen (UNHRC), Dudgeon (European Court of Human Rights), Young v Australia (UNHRC), Lustig-Prean and Beckett v United Kingdom (European Court of Human Rights) and Lawrence v Texas (US Supreme Court). Sodomy laws are out of step with international trends toward toleration of sexual minorities, understandings of sexual orientation,326 notions of individual liberty and privacy interests as well as the right of all individuals to equal protection of the laws.327
Criminalising consensual sexual activity between adult males stigmatizes individuals (especially public figures). Sodomy laws perpetuate homophobia. Researchers in both the US and Australia have found a widespread and obvious connection between societal heterosexism and homophobia and the rate of hate speech and hate crimes.328
Notwithstanding protestations to the contrary by some groups in society as well as the former Prime Minister of Malaysia, Mahahtir, sodomy laws also complicate the ability of the state to address important health issues, such as HIV and AIDS, by encouraging self loathing and self hatred amongst gay men. The internalization of societal homophobic views in communities of sexual minorities, such as the gay community, can have a harsh impact. Societal revulsion can become internalized revulsion. This, in turn, can lead to emotional isolation, poor confidence and a lack of sense of self worth. Harmful patterns of behaviour can emerge. Such behavioural actions can be reflected in activities, such as having unprotected sex, or in disproportionately higher adolescent suicide rates329 as well as in greater susceptibility to alcohol and drug abuse330 to overcome grieving for being different in terms of sexual orientation. In addition, homophobia has been linked to greater health risks, particularly in relation to the acquisition and progression of HIV/AIDS.331
Homophobia is perpetuated by a complex mix of arguably political, historical, religious and other factors (including gender, age, education and socio-economic background). Addressing homophobia requires multi-disciplinary approaches that transcend changes in the law and include the involvement of, and consultation with, all communities to foster a greater understanding and respect for the growing interaction between domestic attitudes and evolving international human rights principles of dignity, autonomy, privacy and equality – as reflected in the freedom to form intimate associational homosexual relationships.332
Non-governmental agencies, such as Human Rights Watch, politicians, well-known personalities, including without limitation, members of the press and heroic sports figures can each contribute to advancing emerging international human rights norms regarding sexual orientation by embracing homosexuality as a sign of diversity and source of strength. So, too, can famous figures in other marginalized and traumatized communities! Thus, leadership, education and understandings about sexual orientation are all important in changing social attitudes which will, it is hoped, ultimately come to be reflected in legal norms. However, changes in legal norms will not suffice to address issues such as homophobia or the wider issue of gay liberation. Certainly, as canvassed in this article, a criminal justice system which legitimates violence and harassment against sexual minorities and relegates them to a subordinate position, along with religious views condemning homosexuality as immoral, contribute to homophobia. There are many other causes of this social disease. Both additional research into the causes of homophobia and educational initiatives encouraging toleration and acceptance of gays and lesbians are urgently needed, as are hate crimes laws including crimes motivated by animus based on sexual orientation, and recognition of rights accorded to heterosexual couples.
Social forces outside the law continuously interact with the law and help shape its impact on human behaviour.333 While changing social norms might come to be reflected in legal norms, it is not realistic to expect changing legal norms to eliminate homophobia or foster gay liberation. As queer theorists aptly point out, mere changes in law reform will not achieve freedom from intrusion and oppression in our lives.334 Nonetheless, the repeal of the sodomy laws represents one small step of progress toward addressing homophobia. There should be toleration of diversity, autonomy and dignity, particularly in countries, such as Australia, the US and Malaysia, in which there exist a variety of groups with different ethnic, religious and political backgrounds. Individuals from these divergent groups in society possess different moral values on personal intimate matters. The criminal law should try to remain out of the moral fray, particularly when there are clashing conventions of morality.335 Diversity needs to be cherished substantively rather than oratorically so that the differences serve as the source of strength rather than division.336 Equally significant, as many international human rights scholars have noted for years, it is important to foster within each member state of the United Nations an attentive interest amongst the populace in the objectives of international treaties and emerging norms of international human rights.337 Such scholars have also noted the successful realisation of such international norms is contingent upon world opinion.338 These factors demonstrate both the importance and limitations of domestic law reform as exemplified in the repeal of the sodomy laws in Australia and the US in addressing homophobia.
Australian High Court Justice Michael Kirby eloquently stated in a public lecture:
Universal human rights afford common ground for us all to join together on a shared platform. Such rights are needed to permit each and every one of us to fulfil ourselves as our unique human natures, intelligence and moral sense demands. … Those rights … are precious manifestations of deep-seated human feelings that express part of the very essence of what it is to be a human being. … Universal human rights … are awkward. They exist in people who are not exactly like ourselves. All people. Australians and Malaysians. Christians and Muslims. People of other faiths and of no faith. Fair and dark. Rich and poor. Straight and gay.339
The coalition of groups opposing greater human rights freedoms for LGBTI individuals play on:
an anxiety: that norms governing personal life, which family or community or religion used to inculcate, are losing strength. … The role of human rights principles, unquestionably, is to mark out spaces of personal freedom, to affirm areas where individual privacy and dignity and autonomy should prevail against state or community regulation. But human rights principles also defend communities. They guard them against measures which, by isolating or marginalizing peoples, threaten the whole body politic with epidemic disease. They protect minority and subcultural communities against change or uniformity forced on them by the state. They ensure diversity both among communities and cultures, and within them.340
We’ve come a long way baby. But we still have a long way to go!
1 Quotation cited by Roger Cotterrell, ‘Comparative Law and Legal Culture’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (OUP, Oxford 2006) 731.
* Dr Alan Berman is an Adjunct Research Fellow of the Socio-Legal Research Centre of Griffith University and Senior Lecturer in Law at the University of Newcastle, New South Wales, Australia. BA, JD, Duke University, LLM, Victoria University of Wellington (New Zealand), PhD, Southern Cross University (Lismore, Australia). The author gratefully acknowledges the helpful comments on earlier drafts of this article by Professor Paula Baron, Dean, Griffith Law School and Professor Sandra Berns, Head of School, Griffith Law School. The author gratefully acknowledges the research assistance provided by Vicknaraj Thanarajah. The author also acknowledges Kathrin Bain and Joseph Wenta for their assistance in cite checking and conforming the footnotes in this article to OSCOLA style.
2 Caroline Wells Feree, ‘Bowers v Hardwick: The Supreme Court Closes the Door on the Right to Privacy and Opens the Door to the Bedroom’ (1988) 64 Denv.U.L.Rev. 599, ns 1-10; see especially ns 8-10, citing Genesis 19:1-19, Leviticus 18:22 stating in relevant part: ‘[T]hou shall not lie with mankind as with womankind; it is abomination’. Sodomy has been defined differently in various jurisdictions. For example, the relevant 1984 Georgia law (Georgia Code Ann § 16-6-2 (1984)) provides, in pertinent part, as follows: ‘(a) A person commits an offense of sodomy when he performs or submits to any sexual act involving the sexual organs of one person and the mouth or anus of another … (b) A person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years …’: Bowers v Hardwick 478 US 186, 188 n 1 (1986). Though the sodomy laws challenged in Bowers v Hardwick covered potentially both heterosexual and homosexual conduct, the court chose to construe the statute narrowly and frame the constitutional issue in terms of the legality of homosexual activities: see below ns 69-70 and accompanying text. In Lawrence v Texas the US Supreme Court said mankind was interpreted in an Act of 1533 as including women and girls. The court explained that the lack of legal proscriptions concentrating on homosexual conduct as a separate category did not actually surface until the end of the 19th Century: Lawrence v Texas 539 US 558, 568 (2003).
3 Sodomy has been defined in laws in Tasmania that criminalised consensual sex between adult males in private; see the now repealed sections 122 (a) and (c) of the Criminal Code Act 1924 (Tas), available at
accessed 9 July 2008. In other countries, such as the US, some sodomy laws had much wider potential application: see n 2 above.
4 Feree (n 2) 600; see Simon Obendorf, ‘Sodomy as Metaphor’ in Philip Darby (ed) Postcolonizing the International: Working to Change the Way We Are (Writing Past Colonialism Series, University of Hawai’i Press, 2006) 178 who asserts that sodomy’s symbolic power derives from its fundamental place in Christian and Islamic religious scriptures, both of which allegedly proscribe such activity.
5 The Universal Declaration adopted in 1948 by the UN General Assembly has come to be recognised by commentators as having the force of customary international law: Henry J Steiner, Philip Alston and Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (3rd edn OUP, Oxford 2008), 152, 161. The International Covenants on Civil and Political Rights (‘ICCPR’) and on Economic, Social and Cultural Rights (‘ICESCR’) were both adopted in 1966: see Alan Berman, ‘International Human Rights Law and New Zealand’s Foreign Relations: A Comparative Study of New Zealand’s Relations With South Africa and Iran’ (1990) 12 U. Haw. L. Rev. 283, 284. Several decades later the Convention on the Elimination of All Forms of Discrimination Against Women (‘CEDAW’) came into force. As of January 2007, there were 160 state parties to the ICCPR, 155 state parties to the ICESCR, and 185 state signatories to CEDAW: see Steiner, Alston and Goodman 151, 263.
6 –, ‘ILGA publishes 2008 report on State-sponsored Homophobia Report – Being lesbian or gay is risking jail time in 86 countries and death penalty in 7’ (Press Release, 14 May 2008)
accessed 7 July 2008. Sixty member states of the United Nations have openly endorsed freedoms with respect to lesbian and gay sexual orientation at the United Nations Commission on Human Rights: see –, ‘Supportive Governments: 60 countries have publicly supported sexual orientation at the CHR/HRC between 2003 and 2008’ (Press Release, 7 April 2008)
accessed 7 July 2008.
7 Ibid; In December 2006, the United Nations Economic and Social Council (ECOSOC) approved consultative status to three non-governmental organisations from European countries dealing with lesbian and gay issues. In July 2007, ECOSOC granted such status to two additional NGOs that deal with lesbian and gay human rights: –, ‘Gaining the Right to Speak at the UN: United Nations Grant Consultative Status to Groups Working to Address Sexual Orientation and Gender Identity Issues’ (Press Release, 24 July 2007)
accessed 7 July 2008. However, in February 2008, the United Nations Committee on NGOs refused to grant consultative status to three groups dealing with LGBT issues from Spain, the Netherlands and Brazil: –, ‘Gaining the Right to speak in Our Name at the UN: Lesbian, Gay, Bisexual and Transgender groups still face Discrimination in Accessing Consultative Status’ (Press Release, 13 February 2008)
accessed 7 July 2008; Scott Long, ‘Anatomy of a Backlash: Sexuality and the “Cultural” War on Human Rights’ (Essay, 2004)
accessed 7 July 2008 at 3, 17.
8 Long (n 7) 9, 12. See also n 9 below. The repeal of the sodomy statutes in the United States was the product of constitutional decision making: see ns 97-114 and accompanying text below.
9 Justice Kirby views this growing interaction between international human rights law and constitutional interpretation as having been hastened by a blend of factors, such as ‘politics, economics, technology even possibly the evolution of our species’: Justice Michael Kirby, ‘Take Heart – International Law Comes, Ever Comes (Speech at The University of Adelaide, Flinders University Conference on International Law – The Challenge of Conflict, 27 February 2004)
accessed 7 July 2008; see also (cited in Justice Kirby’s speech): Harold Hongiu Koh, “International Law as Part of Our Law” (2004) 98 AJIL 2; Harold Hongiu Koh “The Globalisation of Freedom” 26 Yale J. Int’l. L. 305 (2006).
10 Kirby (n 9).
11 See Long (n 7); Obendorf (n 4).
12 See comprehensive discussion of recent events in Malaysia involving Anwar Ibrahim in Part III (D) below.
13 Kirby (n 9).
14 See Michael Flood and Clive Hamilton, ‘Mapping Homophobia in Australia’ (Webpaper No 79, July 2005)
accessed 9 July 2008 who define the nature and effects of homophobia. See also Long (n 7) 17.
15 See, for example, the differences in the historical development of judicial review and the principle of separation of powers in each country: Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (4th edn The Federation Press, Newtown (NSW) 2006) 19-28; cf Rais Yatim, ‘The Road to Merdeka’ in Andrew Harding and HP Lee (eds), Constitutional Landmarks in Malaysia – The First 50 Years: 1957-2007 (Lexis Nexis, Singapore 2007) 5,6. There are limitations in recounting historical developments in any context: see Alan Berman, ‘Kanak women and the colonial process’ (2006) 2 Int. J. L. C. 12. Some comparative law methodologists embrace an approach that examines differences and similarities without necessarily assuming similarities or differences should be emphasised: Ralf Michaels, ‘The Functional Method of Comparative Law’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (OUP, Oxford 2006), 378-80; compare Gerhard Dannemann, ‘Comparative Law: Study of Similarities or Differences?’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (OUP, Oxford 2006), 389-91.
16 Nils Jansen, ‘Comparative Law and Comparative Knowledge’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (OUP, Oxford 2006), 314. See also Duncan Kennedy, ‘Freedom and Constraint in Adjudication: A Critical Phenomenology’ (1986) 36 J. Leg. Ed. 518, 546, 548-62.
17 See, for example, Berman (n 15); Alan Berman, ‘The Law on Gender Parity in Politics in France and New Caledonia: A Window into the Future or More of the Same?’ (2005) Oxford U. Comparative L. Forum 2 at ouclf.law.ox.ac.uk
accessed 9 July 2008, ns 121-124 and accompanying text.
18 Dannemann (n 15) 409, 410; see generally Horatia Muir Watt, ‘Globalization and Comparative Law’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (OUP, Oxford 2006).
19 Watt (n 18) 579-592.
20 Cotterrell (n 1) 731; see also Long (n 7); Watt (n 18) 581.
21 Dannemann (n 15) 409-10.
22 Poh-Ling Tan ‘From Malaya to Malaysia’ in Andrew Harding and HP Lee (eds), Constitutional Landmarks in Malaysia – The First 50 Years: 1957-2007 (Lexis Nexis, Singapore 2007) 43-45; Aaron D Davidson, ‘”I Want My Censored MTV”: Malaysia’s Censorship Regime Collides with the Economic Realities of the Twenty-First Century’ (1998) 31 Vand. J. Transnat’l .L. 97, 102-5. See also Scott L Goodroad, ‘The Challenge of Free Speech: Asian Values v Unfettered Free Speech, an Analysis of Singapore and Malaysia in the New Global Order’ (1999) 9 Ind. Int’l. & Comp. L. Rev. 259.
23 Dannemann (n 15) 392; Yatim (n 15).
24 Dannemann (n 15) 392; see also n 17 and accompanying text above.
25 Victoria was identified in the 2003-2004 survey conducted by the Australian Institute as the least homophobic state: see Flood and Hamilton (n 14) 1, 5.
26 See Part III (B) below and accompanying footnotes.
27 This coalition comprises predominantly non-governmental organisations from the US associated with certain right-wing religious groups (eg Evangelicals and Mormons), and also includes the Organisation of the Islamic Conference (OIC) of which there are currently 57 member countries, the vast majority of which (47) engage in state sponsored discrimination of homosexuals. In ten of the OIC member states, homosexuality is punishable by death: Rod Liddle, ‘I Know Why The Government Wants To Send Homosexuals Back To Iran To Be Hanged’ The Spectator (UK, 26 March 2008)
accessed 8 July 2008. Human Rights Watch has noted the Bush administration has played a more subtle role on the issue of sexual orientation in the UN with insinuations it implicitly supports the position of these non-governmental organisations: Long (n 7) 13.
28 Michele Graziadei, ‘Comparative Law as the Study of Transplants and Receptions’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (OUP, Oxford 2006), 455-463.
29 Watt (n 18) 587; Long (n 7) 12-13.
30 In 1998, as a reflection of the dramatic change in times, the Tasmanian Parliament passed unanimously in both chambers arguably the most useful anti-discrimination law in Australia, the Anti-Discrimination Act 1998 (Tas). Attempts have been made to promote Tasmania as a gay friendly tourist destination, and State policies provide a vigorous response to the problem of the spread of HIV/AIDS. Equally notable, Tasmania passed the Relationships Act 2003 (Tas), a far-reaching piece of legislation that recognises significant conjugal and non-conjugal relationships and provides legal equality in such relationships akin to a civil union or marriage through the registration of a Deed of Relationship. See generally the writings of Rodney Croome, Gay Advocate
accessed 8 July 2008. See also Justice Michael Kirby, ‘Three Tasmanian Law Reformers’ (Speech delivered at the Training Consortium, Hobart, Tasmania, 5 November 2004),
accessed 7 July 2008; Rodney Croome, ‘Relationship Reform in Australia’ (Address by Rodney Croome to the Australian Fabian Society (Tasmanian Branch) 22 October 2003)
accessed 7 July 2008. As of 24 April 2007, 81 relationships had been registered under this Act with the State Registry of Births, Deaths and Marriage: Tasmanian Gay and Lesbian Rights Group, ‘Deeds of Relationships – The Current Stats’
accessed 7 July 2008. See also Flood and Hamilton (n 14) who discuss the relationship between homophobia and discrimination against homosexuals.
31 Wayne Morgan, ‘Queer Law: Identity, Culture, Diversity, Law’ (1995) 5 Australasian Gay & Lesbian L. J. 1, 3, 9. On the other hand, social attitudes regarding homosexuality have most certainly improved since the sodomy laws were first challenged by Nick Toonen in the early 1990s: Flood and Hamilton (n 14).
32 See Sandra Berns and Alan Berman, ‘Homophobia Perpetuated: The Demise of the Inquiry into the Marriage Amendment Bill 2004 (Cth)’ (2005) 30(3) Alt LJ 104, 107-8, and further discussion at n 177 below and accompanying text.
33 Flood and Hamilton (n 14).
34 In 2007, a gay property developer who wished to set up a holiday destination for gay tourists on Tasmania’s north-west coast, received death threats, and letters were sent to residents in the local town advising them to consider their children and oppose such a move which would saturate the town with gay men from Sydney, Australia: Natalie Craig, ‘No room for gay developer in Penguin’s property parade’ The Age (Melbourne, Australia, 9 April 2008) 7.
35 See Part III (B) below for a fuller analysis of the relevant social attitudes.
36 Bowers v Hardwick (n 2).
37 The US Supreme Court in Lawrence v Texas (n 2) 576 cited several decisions of the European Court of Human Rights. These included Dudgeon v United Kingdom (App no 7525/76) Series A no 45 (1981); PG and JH v United Kingdom (App no 44787/98) ECHR 25 September 2001; Modinos v Cyprus (1993) 16 EHRR 485; Norris v Ireland (1988) 13 EHRR 186. The court also relied upon the Wolfendon Report: See n 62 and accompanying text.
38 See Long (n 7); See also n 77 and accompanying text below for further details of the circumstances surrounding the murder of Matthew Shepard.
39 See Long (n 7); See also Part III (A)(3) below
40 See Berman (n 5) 291-2, citing Quentin-Baxter, ‘International Protection of Human Rights’ in Kenneth Keith (ed) Essays on Human Rights (1968) 144-5; Kirby (n 9).
41 Watt (n 18) 594-5; cf Davidson (n 22) 133-6. See also Long (n 7) 16 who persuasively reasons: ‘[c]ultures are made up of faces. They are not monoliths; they are composed of diverse individuals, each contributing to and minutely changing what the culture means and does’.
42 See Lawrence v Texas (n 2) 567-72 (2003); See also Michel Foucault, The History of Sexuality Volume 1: An Introduction (Vintage Books edition, 1990), 43 (cited in Morgan (n 31) 9 n 24).
43 Watt (n 18) 595, 598. See also Harold Berman, ‘Comparative Law and Religion‘ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (OUP, Oxford 2006), 741 who asserts that comparative legal methodology must delve into the impact of religion on the development of law in both Western and non-Western countries. In Western countries, the majority of the population is Christian. In the non-Western world, Muslims form the largest religious population. In a 2003-2004 survey conducted in Australia, Catholics and individuals affiliated with the Anglican and Uniting Churches as well as other religions were found to be the most tolerant of homosexuality. The authors conclude these findings are ‘counter-intuitive’: see Flood and Hamilton (n 14) 13-14.
44 Watt (n 18) 604.
45 Watt (n 18) 605.
46 Long (n 7) 17.
47 Cotterrell (n 1) 731.
48 Berman (n 17) ns 25-27 and accompanying text; see also Chris Weedon, Feminist Practice and Poststructural Theory (Blackwell Press, Oxford 1992) 18-19, 21, 40-41, 111-113 (as cited in Berman (n 17)).
49 See n 48 above.
50 See Long (n 7) 16-17 who aptly notes: ‘[w]hen a culture is reinvented for ideological purposes as a faceless, seamless whole-incapable of dissent from within, so that any dissenter automatically becomes an outsider; incapable of changing, so that growth seems like destruction-it has ceased to be an environment in which people can live and interpret their lives. It has become a rhetorical weapon to be wielded against individuals, a tool of repression’. See discussion of the most recent developments in Malaysia in Part III (D) below.
51 Cotterrell (n 1) 726.
52 Early sodomy laws in the US were not aimed at homosexuals but rather were designed to prevent non-procreative sexual activity in general. It is also clear that sodomy laws were not enforced against consenting adults acting in private. Most charges were brought against persons engaged in such conduct in public or with non-consenting persons: Lawrence v Texas (n 2) 568-9.
53 Bowers v Hardwick (n 2) 193-4.
54 Bowers v Hardwick (n 2) 192. Most of these sodomy laws were never enforced. Indeed, they had not been enforced under the Georgia statute for several decades in Thompson v Aldredge 187 Ga 467, 200 SE 799 (1939): Bowers v Hardwick (n 2) 198 n 2. Even though the sodomy law in Georgia had not been enforced against the respondent (Hardwick), he nevertheless argued that the law, ‘as administered by the defendants, placed him in imminent danger of arrest…’: Bowers v Hardwick (n 2) 188.
55 539 US 558 (2003).
56 Specifically, Toonen argued that Sections 122 and 123 of the Criminal Code Act 1924 (Tas) violated the ICCPR (see ns 132-143 and accompanying text below). Section 122 is rather vague in that it refers to sexual intercourse against nature. The provision is also not exclusively related to homosexual activity. It states in pertinent part: ‘Any person who has sexual intercourse with any person against the order of nature; consents to a male person having sexual intercourse with him or her against the order of nature is guilty of unnatural sexual intercourse.’: see n 3 above. Unnatural sexual intercourse is defined to include anal or oral intercourse, or any penetrative sex which is not vaginal. Section 123 is exclusively targeted to male homosexual activity; it provides: ‘Any male person who, whether in public or private, commits any indecent assault upon, or other act of gross indecency with, another male person, or procures another male person to commit any act of gross indecency upon himself or any other male person, is guilty of indecent practice between male persons.’: see n 3 above. Both of these provisions carried penalties up to 21 years in prison: see Sarah Joseph, ‘Gay Rights Under the ICCPR – Commentary on Toonen v Australia‘ (1994) 13 U Tas LR 392, 393, 399.
57 See n 3 and 30 above, and Part III B below .
58 See Section 377C Penal Code (Act No 574) (Malaysia) in Daniel Ottoson, ‘State-sponsored homophobia: A world survey of laws prohibiting same sex activity between consenting adults’ (An ILGA Report, 2008)
accessed 10 July 2008 at 23.
59 Jesse Wu Min Aun, ‘The Saga of Anwar Ibrahim’ in Andrew Harding and HP Lee (eds), Constitutional Landmarks in Malaysia – The First 50 Years: 1957-2007 (Lexis Nexis, Singapore 2007) 285-7.
60 Wu (n 59) 285-6, 289.
61 Wu (n 59). Dicey contends the rule of law includes the absence of an arbitrary unbridled discretionary exercise of power by government which necessitates that the behaviour of each individual (irrespective of political or socio-economic status in society) is subjected on an equal basis to certain established principles of law. The principle has in recent times become controversial in that some scholars, such as Julius Stone, have asserted the rhetoric of the rule of law’s claim to the application of established principles on an impartial basis to all individuals in society is a smokescreen for the way in which the law operates and is applied in reality based on political and economic factors: see Blackshield and Williams (n 15) 107-112. Justice John Basten of the New South Wales Supreme Court in Australia aptly noted in a recent public lecture that the rule of law is a vague variable concept that has been positioned in a range of discursive fora with which lawyers desiring predictability and stability might be ill at ease: Justice John Basten, ‘Human Rights and the Rule of Law’ (The 2008 Sir Ninian Stephen Lecture, University of Newcastle).
62 William H Honen, ‘Peter Wildeblood, 76, Writer Who Fought Against Britain’s Laws Against Homosexuality [Obituary]’ The New York Times (21 November 1999). See also –, ‘BBC On This Day (4 September) – Homosexuality “should not be a crime”‘ available at
accessed 27 August 2008.
63 For details of recent events in Malaysia, see ns 259-279 and accompanying text below.
64 See discussion in Part III (D) below.
65 Kirby (n 9).
66 Bowers v Hardwick (n 2) 192. The relevant 1984 Georgia law (Georgia Code Ann § 16-6-2 (1984) provides, in pertinent part, as follows: ‘(a) A person commits an offense of sodomy when he performs or submits to any sexual act involving the sexual organs of one person and the mouth or anus of another … (b) A person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years …’: Bowers v Hardwick (n 2) 188 n 1.
67 The court later recognised homosexuals as a class of individuals. Nonetheless, laws affecting this class of individuals are not entitled to greater scrutiny by the court: Bowers v Hardwick (n 2) 195; cf 208. While refusing to acknowledge that LGBTI individuals arguably fulfil some of the criteria for heightened scrutiny, the court has apparently recognised that this class of individuals has come to be targeted for disfavoured treatment. This has led the court to scrutinize more carefully the alleged state interest. In Romer, as discussed at n 84-96 and accompanying text below, the court held that singling out a particular group for disfavoured treatment is an illegitimate state interest.
68 Bowers v Hardwick (n 2) 192; the court has previously implied a right of privacy from specific express guarantees in the US Constitution that deal with aspects of privacy: see Griswold v Connecticut 381 US 479, 506 (1965). Justice White in Bowers stated that the court previously found privacy rights ‘implicit in the concept of ordered liberty’ and originating from ‘rights deeply rooted in our Nation’s history and traditions’: Bowers v Hardwick (n 2) 191-2. They included education, child bearing and child rearing, family relations, procreation, marriage, contraception and the right of women to decide whether or not to bear a child (abortion): see 478 US 188, 190. See also, regarding the constitutional right to abortion in the US, Alan I Bigel, ‘Planned Parenthood of Southeastern Pennsylvania v. Casey: Constitutional Principles and Political Turbulence‘ (1993) 18 U. Dayton L. R. 733, 762.
69 See above, n 2; Bowers v Hardwick (n 2) 200.
70 Bowers v Hardwick (n 2) 190
71 As Justice White stated for the majority: ‘The law … is constantly based on notions of morality, and if all laws representing essential moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed. … [The] respondent … insists majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 states should be invalidated on this basis’: see Bowers v Hardwick (n 2) 196.
72 Lawrence v Texas (n 2) 567-572; some theorists assert this differential treatment invariably results in favoured treatment of heterosexuality and subordination of homosexuality through the exercise of state control to uphold public health and morals. See Morgan (n 31) 9-13.
73 Bowers v Hardwick (n 2) 200-3.
74 Bowers v Hardwick (n 2) 214, 218-20.
75 Justice Stevens states: ‘The essential “liberty” that animated the development of the law in cases like Griswold, Eisenstadt, and Carey surely embraces the right to engage in non-reproductive, sexual conduct that others may consider offensive or immoral’: Bowers v Hardwick (n 2) 216.
76 FBI, ‘About Hate Crimes Statistics‘ (2006)
accessed 8 July 2008.
77 See n 76 above; see also William B Rubenstein, ‘The Real Story of US Hate Crimes Statistics: An Empirical Analysis’ (2004) 78 Tul. L. Rev. 1213, 1213-1216, 1227-1229. Congress passed the Hate Crimes Statistics Act (HCSA) in 1990. Though self-identified gay people represent a small proportion of the US population, they allegedly report hate crimes at much higher rates than any other group per capita: 1227-1229. On the other hand, it is difficult to guesstimate the percentage of the overall population that are gay; as Rubenstein accurately observes: ‘Sexual orientation is not visually identifiable. Nor is there even one meaning for sexual orientation: an individual’s sexual orientation can be established by reference to desires, behaviours, identities, or combinations of these, and all three can fluctuate over the course of an individual’s life.’: 1224. The National Health and Social Life Survey conducted in the US in 1994 discovered that only 2.8% of men and 1.4% of women identify as gay, lesbian or bisexual. These statistics might be higher now given progress with regard to freedoms with respect to LGBTI persons over the past decade: 1225-1226. The awareness of hate crimes committed on the basis of hostility toward sexual orientation was heightened in the US when Matthew Shepard, a student at the University of Wyoming, died on 12 October 1998 from injuries sustained in a horrific attack by two individuals in Laramie, Wyoming six days earlier. The motivation for his murder was his homosexual orientation. Despite renewed attempts after Matthew Sheppard’s death to change the law to include sexual orientation in existing federal US hate crimes law, there has still been no change in the law in Wyoming or at the federal level: –, ‘Matthew Shepard Foundation: Replace Hate with Understanding, Compassion and Acceptance’
accessed 8 July 2008.
78 Some of the symbolic actions included convening the first White House Conferences on HIV and AIDS in 1995 and on Hate Crimes in 1997. General funding for AIDS research, education, treatment and housing greatly increased. The Clinton/Gore administration opposed the state-wide attempts to eliminate protections against discrimination for lesbians and gays and attempted to amend Hate Crime legislation to include prejudice related to sexual orientation. For a more detailed account of these and other policies concerning gay and lesbians, see generally Office of National AIDS Policy, ‘The Clinton/Gore Administration: A Record of Progress on HIV and AIDS’ (June 1999)
accessed 9 July 2008; –, ‘President Clinton: Getting Tough on Hate Crimes, outlining The White House Conference on Hate Crimes’ (10 November 1997)
accessed 8 July 2008; –, ‘The Clinton-Gore Administration: A Record of Progress for Gay and Lesbian Amercians’
accessed 8 July 2008.
79 Morgan (n 31) 9-13.
80 Morgan asserts gay liberationists who subscribe to working within state institutional structures to improve the plight of gays and lesbians have been labelled as compliant legal actors, fostering a ‘particularly restrictive and sanitised picture of gay and lesbian identity’: Morgan (n 31) 30.
81 Public opinion and opposition from many groups in society (including the military) resulted in a compromise proposal (Don’t Ask, Don’t Tell), under which more members of the military were discharged until 2004. As social attitudes about gays in the military changed, so too did discharges under the compromise proposal. See Sharon E Debbage Alexander, ‘A Ban by Any Other Name: Ten Years Of “Don’t Ask, Don’t Tell”‘ (2004) 21 Hofstra Labor and Employment L. J. 403, 409; Jeffrey S Dietz, ‘Getting Beyond Sodomy: Lawrence and Don’t Ask, Don’t Tell’ (2007) 2 Stanford J. of Civil Rights & Civil Liberties 63. DOMA withholds federal recognition of gay marriages and allows each state to decline recognition of marriage licenses for same-sex couples issued by other states. The legislative history concerning DOMA ‘reflects a congressional concern about the effect that legalizing same-sex ‘marriage’ in Hawaii would have on states, federal laws, the institution of marriage, traditional notions of morality, and state sovereignty.’; see –, ‘Federal Defense of Marriage Act (DOMA)’
accessed 8 July 2008. This comparative piece does not propose to canvass these two topics as they have been explored extensively in scholarly debate. See, for example, Defense of Marriage Act, Witness Testimonies: Dale Carpenter, ‘US Senate Committee on the Judiciary Subcommittee on the Constitution, Civil Rights, and Property Rights, Hearing on “What is Needed to Defend the Bipartisan Defense of Marriage Act of 1996?”‘ (Written Testimony of Professor Dale Carpenter, University of Minnesota Law School, 4 September 2003)
accessed 8 July 2008.
82 Indeed, the rhetoric from the current Joint Chiefs of Staff Chairman Peter Pace suggests there is continued resistance to gays in the military. He recently defended the existing policy and referred to homosexuality as immoral. See –, ‘Telling Statements On “Don’t Ask, Don’t Tell” (15 March 2007)
accessed 8 July 2008.
83 Long (n 7) 17. Some queer theorists, such as Morgan, take issue with the perception that changing legal norms will liberate LGBTI individuals. Morgan rejects liberation theory which is based on the notion that intensely embedded social norms and attitudes can change over the course of time as a result of law reform because such reforms communicate to the general population that conduct of a discriminatory nature will no longer be tolerated: Morgan (n 31) 14-15. The experiences with the repeal of the sodomy laws in the US and Australia certainly demonstrate that changes in legal rules are insufficient on their own to address homophobia; there must be multi-faceted approaches that stretch beyond the law and encompass other areas that also contribute to homophobia.
84 517 US 620 (1995).
85 The dissenting judgment written by Justice Scalia characterised the law as a humble attempt by ostensibly broad-minded residents of Colorado to safeguard ‘traditional sexual mores against the efforts of a … [geographically concentrated and] politically powerful minority [group] … to revise those mores through the use of the laws’: Romer (n 84) 636. Scalia noted the decision in Romer is inconsistent with the precedent established in Bowers: Romer (n 84) 640-1. If society’s sense of immorality was sufficient to uphold the sodomy statutes in Bowers, then arguably society’s desire to preserve traditional sexual mores should have been sufficient to uphold the amendment to the Colorado Constitution. Thus, the decision in Bowers was arguably implicitly overturned by the result in Romer. Justice Scalia also criticised the majority for enmeshing itself in a culture war: Romer (n 84) 648.
86 The Equal Protection Clause was designed to ensure the ‘law’s neutrality where the rights of persons are at stake’: Romer (n 84) 623. The Amendment was judged both overly narrow and overly broad at the same time. Vital to the notion of the rule of law and the constitutional guarantee of equal protection is the fundamental tenet that all segments of society stay unlocked from government on a neutral basis for all those who request its aid: Romer (n 84) 633-35.
87 Fear of the ‘homosexual’ other was advanced by those in favour of the Amendment to the Colorado Constitution. It was portrayed in discursive fora as a measure denying the conferral of special rights to gay people. In reality, the measure actually prevented and had the effect of repealing all legislative, executive or judicial action at all levels of local and state government that are in any way intended to protect gays and lesbians. Amendment 2 disallowed any attempt to prevent discrimination on the basis of ‘homosexual, lesbian or bisexual orientation, conduct, practices or relationships’: Romer (n 84) 624, 627; By so doing, the measure reinforced the dominant social standing of heterosexuals and the subordinate position of homosexuals: Morgan (n 31) 16.
88 The court was unwilling to recognise that legal classifications based on homosexuality should be submitted to a greater level of scrutiny than ordinary laws. Arguably, lesbians and gays fulfil some, if not all, of the criteria for being granted protected status under the Constitution. The majority’s approach to the Romer case, the continued refusal to grant protected status to gays and lesbians, notwithstanding their arguable fulfilment of most, if not all, of the criteria for heightened scrutiny, demonstrates this class of individuals are left with no protection against laws having potentially disadvantageous outcomes: see Jerome Barron and C Thomas Dienes, Constitutional Law In A Nutshell (3rd edn West Group, Minnesota 1995) 228-234. The groups presently entitled to heightened scrutiny against discriminatory laws are groups based on race, national origin (alienage) (strict scrutiny) and gender and illegitimacy (intermediate level scrutiny). Other classes of individuals are not constitutionally entitled to special protection and laws drawing distinctions on such classes are subjected to the lowest level of review-rational basis review: Barron and Dienes.
89 As Justice Kennedy states: ‘laws of the kind … raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. [I]f the constitutional conception of “equal protection of the laws” means anything, it must at the very least mean that a bare … desire to harm a politically unpopular group cannot constitute a legitimate governmental interest’: Romer (n 84) 632.
90 Though the court in Lawrence v Texas found the argument that the result in Romer provides a justifiable argument for overturning the Texas sodomy laws on Equal Protection grounds, the court refused to do so on that basis. The court said it must instead address directly whether Bowers should be overruled: Lawrence v Texas (n 2) 574-5.
91 The appointment to the White House Office of National AIDS Policy was a higher level appointment than any of the 150 openly gay and lesbian appointments that President Clinton made during his administration: Dale Carpenter, ‘Defying Left and Right’
accessed 8 July 2008. As Carpenter pointed out, ‘though such progress is reversible, Bush, cautiously but perceptibly, is truly “advancing the homosexual agenda,” which is after all, about nothing more than equality’.
92 There are some notable examples that have been cited to support this claim. Justice Jay Bybee appointed to the Ninth Circuit Court of Appeals asserted while a legal practitioner that the Defence Department should deny top secret clearance to ‘known or suspected homosexuals.’ An appointee to the 10th Circuit Court of Appeals, Justice Tymknovich, wrote a law review article criticizing the result of the court in Romer v Evans. Bill Pryor, who was nominated to serve on the 11th Circuit, filed a brief while serving as Attorney General of Alabama, with the US Supreme Court in the Lawrence v Texas case cautioning against invalidating the sodomy statutes because it would lead to a slippery slope in which activities such as necrophilia, bestiality, pedophilia, child pornography and incest would ultimately become socially acceptable: see Richard Goldstein, ‘What Gay-Friendly Republicans? Homos Get the Glad Hand, Phobes Get the Power’ (3 June 2003)
accessed 8 July 2008. President Bush also nominated Leslie Southwick for the Fifth Circuit Court of Appeals who has been criticised for his homophobic views. One journalist noted Southwick, whilst serving on the Mississippi Court of Appeals, concurred in an opinion recognising the right of Mississippi ‘to treat gay men and lesbians as second-class citizens’ based on principles of federalism which should provide a robust role for states rights. He also concurred with the notion that sexual orientation is a choice and the exercise of homosexual orientation ‘should not relieve [such individual] of the consequences of his or her choice’: –, ‘President’s Judicial, Surgeon General Noms. Have Anti-Gay Pasts’ (1 June 2007)
accessed 8 July 2008.
93 Gardiner Harris, ‘Nominee for Surgeon General Testifies in Senate’ The New York Times (13 July 2007)
accessed 8 July 2008; Jake Tapper, ‘”Homosexuality Isn’t Natural or Healthy”: Bush’s Choice for Top Doc Compared Human Genitalia to Pipe Fittings and Said Homosexual Practices Can Cause Injury or Death (7 June 2007)
accessed 8 July 2008.
94 Bob Roehr, ‘AIDS Action, HRC oppose Holsinger’ Bay Area Reporter Online (San Francisco, US, 6 July 2007)
accessed 8 July 2008.
95 Former US Attorney General John Ashcroft placed a prohibition on the yearly Department of Justice gay pride celebration; see Goldstein (n 91).
96 Joe Solmonese, Human Rights Campaign: ‘The Matthew Shepard Act PASSED!’ (email correspondence 28 September 2007); Joe Solmonese, Human Rights Campaign: ‘Hate Crimes Bill DERAILED’ (email correspondence 8 December 2007).
97 539 US 558 (2003). Texas Penal Code Ann § 21.06(a) (2003) provides in pertinent part: ‘A person commits an offence if he engages in deviate sexual intercourse with another individual of the same sex.’ The law defines ‘[d]eviate sexual intercourse’ as follows: ‘(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the penetration of the genitals or the anus of another person with an object.’: Lawrence v Texas (n 2) 563. The Texas law is distinguishable from the Bowers case in that the Georgia law proscribed conduct irrespective of the gender of the participants while the Texas law only applies to same-sex conduct: Lawrence v Texas (n 2) 566.
98 Lawrence v Texas (n 2).
99 Justice O’Connor based her concurring judgment on the Equal Protection challenge: ‘Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behaviour prohibited by § 21.06. The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct – and only that conduct – subject to criminal sanction. … [T]he consequences of conviction are not [relatively minor] … [the convictions] would disqualify them from or restrict their ability to engage in a variety of professions, including medicine, athletic training, and interior design’: Lawrence v Texas (n 2) 581.
100 Lawrence v Texas (n 2) 564, 567. The court came under heavy criticism in some scholarly circles for essentially making public policy. One commentator stated: ‘If the Court makes decisions based on public opinion rather than following substantive due process jurisprudence, the Justices will be interpreting political polls instead of the Constitution.’ This commentator is essentially repeating the oft made claim that the function of Supreme Court justices is merely to interpret the Constitution rather than act as lawmakers by taking ‘a more active role in settling public debates, rather than letting the people cast votes to accomplish the same outcome’: see Susan Austin Blazier, ‘Rational Basis Review in Lawrence v Texas‘ (2004) 26 Campbell Law Review 21, 39. This commentator fails to realize that judges constantly make law in the process of constitutional interpretation. See Justice Michael Kirby, ‘Authority, Principle and Policy in the Judicial Method’ (Speeches delivered at the Hamlyn Lectures, Fifty-Fifth Series, University of Exeter (UK), 19 November 2003),
accessed 11 July 2008.
101 Lawrence v Texas (n 2) 562, 567. Justice Sandra Day O’Connor wrote a concurring judgment.
102 Lawrence v Texas (n 2).
103 Lawrence v Texas (n 2) 567-568.
104 Lawrence v Texas (n 2) 568.
105 Lawrence v Texas (n 2) 569. Indeed, in Georgia, no one had been prosecuted from 1939 until the Bowers case was considered by the US Supreme Court in 1986 (see n 2 above). As one commentator astutely pointed out, if sodomy laws were enforced against both homosexuals and heterosexuals, there would be no room for all of them in the prison system: James J Bromberek, ‘Bowers v Hardwick: The Constitutionality of Georgia’s Sodomy Statute’ (case note) (1987) 20 J. Marshall. L. Rev. J. 325, 341 n 111.
106 Lawrence v Texas (n 2) 569.
107 Lawrence v Texas (n 2) 570.
108 Lawrence v Texas (n 2) 568-71 (2003). Disagreeing with Chief Justice Burger’s sweeping assertions in Bowers that states have intervened to prohibit homosexual conduct throughout Western history, Kennedy states: ‘our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. History and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry. … The sweeping references by … Burger … did not take account of other authorities pointing in an opposite direction’: Lawrence v Texas (n 2) 571-2.
109 Lawrence v Texas (n 2) 575
110 Lawrence v Texas (n 2) 578.
111 Lawrence v Texas (n 2) 578.
112 See n 37 above.
113 Lawrence v Texas (n 2) 573. One commentator believes the Court will, in the future, be more reluctant to rely on international decisions to preserve the legitimacy of the court, particularly since its reliance on international jurisprudence in this case subjected it to severe criticism amongst some academics; Alford states: ‘[t]he Court’s opening gambit has been controversial, and so it is unlikely to risk overreaching in the near future’: Roger P Alford (2004) ‘Federal Courts, International Tribunals, and the Continuum of Deference: A Postscript on Lawrence v Texas‘ (2004) 44 Va. J. Int’l. L. 913, 929; cf Rex D Glensy, ‘Which Countries Count?: Lawrence v Texas and the Selection of Foreign Persuasive Authority’ (2005) 45 Va. J. Int’l. L. 358, 444-446 who argues forcefully that reliance on the Wolfenden Report and the Dudgeon decision are appropriate sources of persuasive authority since they are the product of liberal democratic institutions with similar social structures and the issues dealt with in the Report and Decision fall squarely within the parameters of the issues facing the court in Lawrence v Texas.
114 Kirby (n 9).
115 Lawrence v Texas (n 2) 586.
116 Lawrence v Texas (n 2) 593-4.
117 Lawrence v Texas (n 2) 589, 599.
118 Lawrence v Texas (n 2) 602-3. Justice Thomas noted separately that he would simply vote to abolish the law if he were a member of the Texas legislature. However, as a member of the Supreme Court, he owes his fidelity to the Constitution and there is no privacy or liberty interest implicated in this case: Lawrence v Texas (n 2) 605-6.
119 Despite these encouraging statistics, public support falls considerably to about 50% when issues of recognising same-sex civil unions is raised: see Frank Newport, ‘Six Out of 10 Americans Say Homosexual Relations Should Be Recognized as Legal’ (The Gallup Poll, 15 May 2003)
accessed 8 July 2008. Americans are still split as to the causes of homosexuality. In 2003, 38% of Americans surveyed believed homosexuality was a product of genetic factors though 44% still agree that it is environmentally caused. Polling in 2008 suggests that ‘Americans have shifted from frowning on homosexuality as an alternative lifestyle and being divided over whether it should be legal, to now supporting gay rights … At the same time, the country remains highly ambivalent about the morality of homosexual relations … Americans have generally grown more supportive of gay rights since 2001, reaching record high support on most measures in 2007; however, there has been no further increase in support over the past year’): Lydia Gallard, ‘Americans Evenly Divided on Morality of Homosexuality’ (The Gallup Poll, 18 June 2008)
accessed 10 July 2008.
120 See Philip Chapman, ‘Beyond Gay Rights: Lawrence v Texas And the Promise of Liberty’ (2005) 13 Wm. & Mary Bill Rts. J. 245 who notes the instant significance of Lawrence v Texas is its potential to spectacularly provide a more generous view of liberty. See also Kirstin Andreasen, ‘Lawrence v Texas: One Small Step for Gay Rights; One Giant Leap for Liberty’ (2005) 14 J. Contemp. Legal Issues 73, 81 who asserts that liberty interests were advanced much more in the judgment than privacy interests in that liberty is mentioned 23 times in the majority’s opinion while privacy is alluded to only 4 times.
121 Foucault (n 42); Michel Foucault, ‘The Subject and Power’ in H Dreyfus and P Rabinow (eds), Michel Foucault: Beyond Structuralism and Hermenuetics (University of Chicago Press, 1982) 214; see also Morgan (n 31) 24.
122 See n 48 above.
123 See n 48 above.
124 Ben Smith, ‘Hillary repudiates DOMA’ (Blog, A running conversation about the Democratic Party’s choice for President in 2008, 3 June 2007)
accessed 8 July 2008.
125 Ben Smith, ‘Vulnerable on gay rights?’ (A running conversation about the Democratic Party’s choice for President in 2008, 27 September 2007)
accessed 8 July 2008.
126 Some commentators, such as Morgan have suggested that a gay liberation movement was spawned in Australia just prior to 1970 as manifested in the homosexual law reform subcommittees in the States of New South Wales and Victoria in addition to ‘The Homosexual Law Reform Society of the Australian Capital Territory’: Morgan (n 31) 28.
127 Wayne Morgan, ‘Sexuality and Human Rights: The First Communication by an Australian to the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights’ (1992) 14 Aust. Y. B. I. L. 277, 277.
128 Optional Protocol to the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 302 (ICCPR), Preamble.
129 Ibid, Art 1.
130 Ibid, Art 2. The Committee will consider inadmissible anonymous communications, or one which it considers represent an abuse of the right to submit such communications or if such communication is deemed to be unsuited to the provisions of the Treaty. Also, Article 5 of the Optional Protocol, the Committee will not consider any individual communications unless it has been established that: ‘(2)(a) the same matter is not being considered under another procedure of international investigation or settlement; and (2)(b) the individual has exhausted all available domestic remedies’. If pursuing such domestic remedies would be unduly and unreasonably delayed, the Committee will not enforce Article 5(2)(b).
131 As with the famous Tasmanian Dams case (Commonwealth v Tasmania (1983) 158 CLR 1), the state government of Tasmania advanced state’s rights arguments. Tasmania argued in both cases that the construction of the Tasmanian Dam and the sodomy laws were matters of traditional state concern. However, in the Dams case, the High Court of Australia held that the federal government could, under the External Affairs Head of Power, enact domestic legislation conforming to its obligations under international treaties on matters over which it might not otherwise have jurisdiction. The listing of certain areas in Tasmania as part of a World Heritage Park (pursuant to an International Convention to which Australia was a party) superseded Tasmania’s ability to build a dam. Similarly, in the Toonen case, after Tasmania refused to repeal its sodomy laws even after the UNHRC ruling, the federal government simply passed a federal privacy law that had the effect of nullifying Tasmania’s sodomy laws. It was only after a High Court ruling relying on the federal privacy law that Tasmania took it upon itself to repeal the antiquated sodomy statutes ion 1997: see Morgan (n 31) 22 n 78; Wayne Morgan, ‘Law and Change – Identifying Evil for What It Is: Tasmania, Sexual Perversity and the United Nations’ (1994) 19 Melb. U. Law Rev. 740, 757 n 59. See generally n 30 above.
132 His arguments were fairly detailed and developed. See UNCHR, ‘Views of the Human Rights Committee: Communication No 488/1992’ (31 March 1994) UN Doc CCPR/C/50/D/488/1992 (‘Toonen v Australia‘), [2.5]-[2.7], [3.1]; see also Morgan (n 131) 740-743 for a lengthy discussion of Toonen’s arguments before the UNHRC.
133 Toonen v Australia (n 132) [4.1], [6.1].
134 Toonen v Australia (n 132) [5.1].
135 Toonen v Australia (n 132) [6.1], [6.5].
136 Toonen v Australia (n 132) [6.2].
137 Toonen v Australia (n 132) [6.3].
138 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Article 17 states: ‘(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. (2) Everyone has the right to the protection of the law against such interference or attacks’.
139 Toonen v Australia (n 132) [8.5].
140 Toonen v Australia (n 132) [8.7]. See International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR); Article 2(1) states: ‘1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.
141 Toonen v Australia (n 132) -. Article 26 states: ‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’
142 Joseph (n 56) 400.
143 Toonen v Australia (n 132) Appendix (Individual Opinion submitted by Mr Bertil Wennergren).
144 See n 30 above.
145 See n 30 and 34 above; but cf Morgan (n 31) 30.
146 See n 30 above.
147 For example, one survey undertaken by the New South Wales Police in 1994 found well over half (57%) of those providing responses had been subjected to personal and property crimes or persistent harassment; well over ten percent of gay men (14%) and lesbians (12%) had been physically attacked. Significantly, the fear of that they or their friends might be subjected to physical assault was 90%; see –, ‘Gay, Lesbian and Transgender Hate Crimes’
accessed 8 July 2008. See also Andrew Fitzgerald, ‘Australia’s Criminal Justice System Fails Lesbians and Gay Men’  3 Murdoch University Electronic Journal of Law
accessed 10 July 2008 at ; see also - where it is noted that hate crimes committed against lesbians and gay men propagate intolerance and violence against these sexual minorities and provoke fear in this class of individuals.
148 The New South Wales study also found well over half (56%) of those surveyed had been subjected to one or more types of homophobic abuse, harassment or violence in the past year. An overwhelmingly majority of respondents (85%) reported experiencing such type of homophobic conduct at some stage during the span of their lifetime: see n 147 above.
149 Joseph (n 56) 397-8.
150 See Joseph (n 56) 407 who discusses the cultural relativist vs universalist arguments about homosexuality. Cultural relativists contend human rights standards must take into account distinctive social and cultural traditions as well as the state of economic development of the country. They are generally highly critical of Western notions of human rights norms and universal application of human rights standards which they view as culturally biased. By contrast, universalists assert that human rights should apply to all individuals irrespective of geographical location. Joseph believes that in another context with a less accepting state, some members of the committee might adopt a cultural relativist position while at least other members would hopefully insist on a universalist approach.
151 Malaysia is not a signatory to the ICCPR nor to the Optional Protocol.
152 Morgan (n 131) 745.
153 Joseph (n 56) 410; see Holning Lau, ‘Sexual Orientation: Testing the Universality of International Human Rights Law’ (2004) 71 U. Chi. L. R. 1689.
154 Justice Michael Kirby, ‘Globalism-Future Human Rights Issues’  76 Reform
accessed 10 July 2008.
155 UNCHR, ‘Views of the Human Rights Committee: Communication No 941/2000’ (18 September 2003) UN Doc CCPR/C/78/D/941/2000 (‘Young v Australia‘).
156 Lustig-Prean and Beckett v United Kingdom (2001) 31 EHRR 23.
157 See, for example, Lau (n 153). In 2003, Brazil introduced a resolution into the UNCHR entitled ‘Sexual Orientation and Human Rights’. The resolution stressed that the universal enjoyment of human rights and fundamental freedoms should not be impeded on the basis of sexual orientation. It also called upon states to foster the protection of human rights for all persons regardless of sexual orientation. The resolution was to be voted on in 2005 but it was not introduced because there was a lack of support in the Commission: –, ‘Sexual Orientation and Gender Identity: Human Rights Concerns for the 61st Session of the UN Commission on Human Rights’
accessed 8 July 2008; Douglas Sanders, ‘Human Rights and Sexual Orientation in International Law‘ (17 July 2005)
accessed 8 July 2008. Notwithstanding the withdrawal of this legislation, it is likely that GLBT activism at Geneva will continue to lobby for rights based on sexual orientation and gender identity issues: Sanders. Ironically, some states, such as the US, have taken positions at variance with their usual embrace of universalism. They have instead focused on cultural relativist arguments in refusing to support sexual orientation rights: Sanders. Given the 2003 decision in Lawrence v Texas, the author believes the US will ultimately adopt a universalist position in relation to sexual orientation rights, particularly if a Democrat wins the next Presidential election in 2008.
158 Heidi Gilchrist, Glennys Howarth and Gerald Sullivan, ‘School’s Out: Homosexuality, Bullying and Suicide’
accessed 8 July 2008. A study conducted in New Zealand in 2007 found that bullying in high school tends to induce either underachievement (resulting in students choosing not to seek tertiary education) or overachievement by those who are not crushed by the experience; gay and lesbian people tend to come out later in life if they have tertiary degrees: –, ‘School bullying turns gay teens off education’ (Massey University News, 24 April 2007)
accessed 8 July 2008.
160 See Peter Todd, ‘The Psychoneuroimmunological Data Base for Psychological Interventions in HIV Infection’, (2008) 4(2) Gay and Lesbian Issues and Psychology Review 141. See also Peter Todd, AIDS: A Pilgrimage to Healing – a guide for health professionals, the clergy, educators and carers (Millennium Press, Newtown 1992).
161 This arguably supports queer theorists who assert that changes in law reform are insufficient to free queers from oppression in our lives. See Morgan (n 31); Morgan (n 131). On the other hand, social attitudes regarding homosexuality have most certainly improved since the sodomy laws were first repealed in 1997: see Flood and Hamilton (n 14).
162 See n 34 above.
163 Morgan (n 31); Morgan (n 131) 745.
164 Some criminologists have proposed that adverse opinions towards sexual minorities is often connected to disempowered youth trying to achieve perceived socially desirable types of masculine identity. See Stephen Tomsen, ‘Hate Crimes and Masculinity: New Crimes, New Responses and Some Familiar Patterns’ (Paper presented at the Fourth National Outlook Symposium on Crime in Australia: New Crimes or New Responses, convened by the Australian Institute of Criminology, Canberra, 21-22 June 2001)
accessed 27 August 2008 at 8.
165 Fitzgerald (n 147) .
166 For example, in R v Turner (1994) the court applied criminal laws in a way that disadvantaged a gay man who had been murdered. The accused was found guilty of manslaughter (after successfully pleading provocation as a defence) rather than murder because the victim allegedly made a sexual advance to him which resulted in him temporarily losing self control. See Fitzgerald (n 147) .
167  NSWCCA 97.
168  NSWSC 1130.
169  NSWSC 1055.
170 See –, ‘Partial Defences to Murder in New South Wales 1990-2004’
accessed 8 July 2008.
171 Gail Mason, ‘Violence Prevention Today No 2: Violence Against Lesbians and Gay Men’ (Australian Institute of Criminology, November 1993)
accessed 9 July 2008 at 2; quoted by Fitzgerald (n 147) [1 – iii]. Research conducted in 1989 by Roy Morgan found that over half (54%) of Australians thought that same sex couples should not receive equal social rights and benefits as heterosexual couples. Almost half of the survey participants (47%) thought it should not be unlawful to discriminate against a person because they are homosexual; Fitzgerald (n 147) .
172 Flood and Hamilton (n 14) 1.
173 Fitzgerald (n 147) .
174 Fitzgerald (n 147) [1 – iv]; see Todd (n 160).
175 Lesbians and gay men generally hold negative images of law enforcement and are thus less reluctant to invoke the apparatus of state law enforcement in response to hate crimes. Fitzgerald (n 147) . See also ‘”You Shouldn’t Have to Hide to Be Safe”: A Report on Homophobic Hostilities and Violence Against Gay Men and Lesbians in New South Wales’ (December 2003)
accessed 10 July 2008 (‘You Shouldn’t Have to Hide to Be Safe’); Strategic Framework 2007-2012 (n 181 below).
177 Berns and Berman (n 32) 107-8.
178 Flood and Hamilton (n 14); Long (n 7).
179 In March 2007, Anthony Callea came out in a courageous way and was congratulated for doing so by Australian High Court Justice Michael Kirby. See ‘Twelve Years in the High Court – Continuity and Change’ (Speech at Southern Cross University, Lismore, Australia, 30 March 2007)
accessed 11 July 2008 at 44. –, ‘Out, proud and ready to go for gold’ Sydney Morning Herald (24 May 2008)
accessed 8 July 2008.
180 Educational initiatives, such as the ALLY Support Network, are designed to raise awareness amongst academic staff and students about LGBTI peoples and their issues and ‘are willing to affirm their experiences and rights.’ For example, the University of Newcastle ALLY Network is designed to broaden existing equity programs to embrace LGBTI sexual diversity which advances a ‘more welcoming, diverse and inclusive culture…’: UoN ALLY Network Program
accessed 8 July 2008. Such initiatives are important. It is always better to have some educational awareness raising exercise than to have no awareness program at all. Even educational institutions rhetorically embracing equity and diversity might be unaware that ‘prejudicial behaviours based on sexuality frequently occur in schools and tertiary institutions’: Ibid. This can have devastating consequences for the health (emotional and physical) of LGBTI staff and students. It is important for all individuals involved throughout secondary and tertiary education to be aware of homophobia and to at least attempt to address it so that educators are not faced with having to address homophobia and its associated traumatizing effects in the classroom.
181 There are practical steps that have been taken in some states, such as New South Wales, to address prejudice related violence. This includes requiring law enforcement to maintain records of prejudice related violence, recognising that non-reporting of such violence is also a problem. Law enforcement and community organisations must also be aware of this as a problem to encourage reporting of these incidents. In December 2007, the New South Wales government launched a policy to address homophobic violence. It is entitled: ‘Strategic Framework 2007-2012: Working Together: Preventing Violence against gay, lesbian, bisexual and transgender people’
accessed 10 July 2008 (‘Strategic Framework 2007-2012‘). The policy recognises addressing homophobic violence requires a holistic approach representing a range of governmental agencies including the ‘Police Force, Department of Education and Training, NSW Health, City of Sydney, Department of Corrective Services and Department of Housing’. Brendan Thomas (Assistant Director General, Crime Prevention and Community Programs) (Personal correspondence 18 January 2008). It has been recognised by a nationwide study (Marion Pitts, Anthony Smith, Anne Mitchell and Sunil Patel, ‘Private Lives: A report on the health and wellbeing of GLBTI Australians’ (2005)
accessed 8 July 2008) conducted by the Australian Research Centre for Sex and Health in Victoria at LaTrobe University, that non reporting is a major problem faced in all states of Australia. The Victorian Bar Association was sufficiently concerned about this situation to fund another survey in Victoria to study the reasons for non-reporting of prejudice related violence and how changes in the legal system and judiciary can help address the issue of non reporting. As each state adopts more progressive policies in relation to prejudice related violence, this will hopefully encourage other states (and perhaps ultimately even the federal government) to adopt uniform policies to be applied in all the states and territories: (Personal correspondence with Associate Professor Anne Mitchell). As this piece was being completed, the Socio-Legal Research Centre of Griffith University in Queensland was awarded a grant from the Legal Practitioner Interest on Trust Accounts Fund (LPITAF) to investigate the prevalence of homophobic violence and the nature of such violence in Queensland as well as the extent to which non-reporting exists and the factors contributing to such non-reporting. These studies in Queensland and Victoria will accelerate understanding of these issues in the Australian context. Gay marriage, though now supported by a majority of Australians, is a concededly contentious issue on which to build a consensus. Even some in the gay community do not wish to be recognised in this arguably heterosexual institution. Nonetheless, a 2007 Galaxy Poll found 57% agreed same sex couples should be able to marry. Discrimination has been demonstrated to be a much less contentious issue on which to reach a consensus. The same Galaxy Poll found an overwhelming majority of Australians (71%) believe same sex partners should have the same legal rights as those in a heterosexual or de facto relationship: Get Up! Action for Australia, ‘New Poll Finds 71% of Australians Want Equality for Same Sex Couples’ (Press Release, 21 June 2007)
accessed 8 July 2008. Reporting of prejudice related violence against homosexuals should arguably be an even easier issue on which the states, territories and national government should be able to agree. The fact there remain differing methods for reporting hate crimes in the states and territories and that non reporting remains a major problem in Victoria as well as other states, according to the 2005 Private Lives survey, represents that one can legislate to eliminate identifiable areas of discrimination but it is difficult to legislate against fear and prejudice against homosexuals. This is consistent with queer theorists who maintain changing legal norms will not necessarily lead to less oppression amongst homosexuals. Nonetheless, at the very least, it is certainly much more sensible enact more enlightened laws and progressive policies to address prejudice-related violence against homosexuals. See, for example, You Shouldn’t Have to Hide to Be Safe (n 175); Strategic Policy Framework 2007-2012. As stated in the text above, political leadership most certainly can reinforce emerging international legal norms concerning homosexuality, such as the important steps recently announced by Australian Commonwealth Attorney-General Robert McClelland: see Samantha Maiden, ‘Winners and losers’ in new gay laws’ The Australian (30 April 2008)
accessed 8 July 2008.
182 See Berns and Berman (n 32).
183 Misha Schubert, ‘Law reforms for gay couples’ The Age (Melbourne, Australia, 30 April 2008)
accessed 8 July 2008.
184 Human Rights and Equal Opportunity Commission, Same-Sex: Same Entitlements – National Enquiry into Discrimination against People in Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits (May 2007) available at
accessed 27 August 2008; see also n 183 above
185 See n 183 above.
186 See n 183 above. See also Flood and Hamilton (n 14) 2.
187 Poh-Ling Tan (n 22) 25-46; Davidson (n 22) 101-2. See also Goodroad (n 22).
188 See Articles 5(1), 8(1), 10(1)(a), (c), (k), (2)(a), (b), and (c) Federal Constitution of Malaysia. Davidson (n 22) 104. See also Article 149 Federal Constitution of Malaysia which provides authority for laws passed to maintain public order. Legislation passed under Article 149 of the Constitution, including the Internal Security Act, does not need to be justified by a declaration of a public emergency: see Nicole Fritz and Martin Flaherty, ‘Special Report – Unjust Order: Malaysia’s Internal Security Act’ (2003) 26 Fordham Int’l. L. J. 1345, 1373-4.
189 Harding (n 260) 115-133.
190 Harding (n 260) 115.
191 Goodroad (n 22) 277. In addition to these limitations, the Malaysian government may refuse to allow a film to be shown or the distribution of any material which in the absolute discretion of the Minister is deemed to be ‘prejudicial or likely to be prejudicial to public interest or national interest’: Goodroad (n 22) 281. This allows for great censorship of such material: Goodroad (n 22) 276-7.
192 The ISA 1960 was designed initially to deal with the Communist insurgency but was later applied to many dissenting groups within Malaysia, including union officials, educators, students and opposition political leaders: Poh-Ling Tan (n 22) 43; Goodroad (n 22) 271-2.
193 See Davidson (n 22) 104-112; Harding (n 260) 123-6.
194 Some commentators assert the marketplace of ideas Western model of free speech is unsuitable for an Asian country in which crime and order need to be maintained for the sake of the community: see, for example, Goodroad (n 22) 260 who contends a considerable proportion of individuals in Malaysia equate a high quality of life with the promotion of community values, whereas, Americans tend to believe individual liberty is more likely to produce a higher quality of life.
195 One outcome of that crisis was the elimination of the words “judicial power” from the Constitution. see Visu Sinnadurai, ‘The 1988 Judiciary Crisis and its Aftermath’ in Andrew Harding and HP Lee (eds), Constitutional Landmarks in Malaysia – The First 50 Years: 1957-2007 (Lexis Nexis, Singapore 2007) 173-198.
196 Perry S Smith, ‘Speak No Evil: Apostasy, Blasphemy and Heresy in Malaysian Syariah Law’ (2004) 10 U C Davis J Int’l L & Pol’y 357, 361-3; Vanitha S Karean, ‘The Malaysian Constitution and its Identity Crisis – Secular or Theocratic?’  LAWASIA Journal 47, 49.
197 See Andrew Harding, ‘The Keris, the Crescent and the Blind Goddess: The State, Islam and the Constitution in Malaysia’ (2002) 6 Sing. J. Int’l & Comp. L. 154; see also Karean (n 196).
198 See above n 61.
199 As Mallat has observed: “The name of the game has…been changed from the rule of law to rule by law … Lack of independent judicial review operates at all levels, and it is mainly a function of a lack of free political representation…Muslim states remain, by and large, notable exceptions to the rise of democracy across the planet. … [T]he loss of faith in the judiciary underlines the graver dimension of this downward trend … executive power has systematically and skilfully staked the top judiciary with people whose allegiances is not to independence … the reality of arbitrariness and executive fiat is daunting …”. Chibli Mallat, ‘Comparative Law and the Islamic (Middle Eastern) Legal Culture’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (OUP, Oxford 2006) 619.
200 This is not atypical of some non-Western Islamic states which view civil and political rights as a Western luxury. Greater political speech, for example, is often viewed as a potential hindrance to maintaining economic productivity. In addition, communal rights of the majority are considered more essential than individual civil and political rights. See Mallat (n 199).
201 Fritz and Flaherty (n 188) 1347 n 6. In 1995, Malaysia acceded to the Genocide Convention and the Convention on the Elimination of All Forms of Discrimination Against Women, as well as the Convention on the Rights of the Child: Li-ann Thio, ‘Beyond the “Four Walls” In An Age Of Transnational Judicial Conversations: Civil Liberties, Rights Theories, and Constitutional Adjudication In Malaysia and Singapore’ (2006) 19 Colum. J. Asian L. 428, 458. In July 1999, a National Human Rights Commission was created to scrutinize the extent to which Malaysia was complying with the obligations set forth in the Universal Declaration of Human Rights. Though the credibility of the group has been called into question as a result of some contentious appointments, this body has demanded the repeal of the ISA and ratification of both the ICCPR and ICESCR, as well as the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CAT’): Fritz and Flaherty (n 188) 1351-2.
202 See n 23 above.
203 Obendorf (n 4) 185. As stated above, the ISA has historically served to stifle political opponents. In the post-Mahathir era, it is increasingly less likely that the ISA will be repealed by his successor Abdullah Ahmad Badawi. Malaysia has a historical legacy of an indisputable lack of commitment to promoting human rights domestically. See Fritz and Flaherty (n 188) 1346, 1431-1434.
204 Obendorf (n 4) 185.
205 Ming-Yu Cheng and Sayed Hossain, ‘Malaysia and the Asian Turmoil’ (2001) 2 APLPJ 125, 126.
206 Over 40,000 workers lost their jobs in a one year period and GDP fell by over 7% during the same period accompanied by a 5% rate of inflation: Cheng and Hossain (n 205) 127, 130; see also Tey Tsun Hang, ‘Malaysia: The Fierce Politico-Legal Backlash’ (1999) 3 Sing. J. Int’l & Comp. L. 1.
207 Obendorf (n 4) 186.
208 Cheng and Hossain (n 205) 133; Ross P Buckley and Sarala M Fitzgerald, ‘An Assessment of Malaysia’s Response to the IMF during the Asian Economic Crisis’  Sing. J. Leg. Studies 96, 101.
209 Cheng and Hossain (n 205) 134.
210 Cheng and Hossain (n 205) 137.
211 Some commentators have suggested that the response of Malaysia to the economic crisis probably produced greater economic outcomes than those in countries which eagerly embraced the policies of the IMF. Some have asserted that Malaysia’s recovery would have been more rapid if it had received assistance from the IMF because of its rigid corporate and legal regulatory structure. On the other hand, others have asserted that Malaysia’s ultimate policy responses to the economic crisis took into account distinctive local conditions and were therefore more ideally crafted to address its specific circumstances, including a softer impact on those living in poverty and a more equitable approach to the situation. Equally important symbolically, Malaysia retained control over its own economic fortunes rather than abdicating control to a supranational institution whose interests lie in safeguarding the global financial system rather than in the economy of a single country. Some have suggested Malaysia’s approach was also consistent with fostering democratic solutions based on policies of locally elected representatives rather than relying on externally imposed solutions of dominating supranational institutions: Buckley and Fitzgerald (n 208) 115-6.
212 Wu (n 59) 273-290 for a full detailed account of the political split between the two leaders over economic and democratic reforms and the events leading to the Anwar trial and incarceration as well as very recent events, such as Anwar’s subsequent acquittal on charges of sodomy and release from imprisonment as well as a defamation suit filed by Anwar against Mahathir in 2006.
213 Alvin Ong, ‘Anwar: Malay Colleagues Corrupt’ (22 October 1999)
accessed 11 July 2008.
214 –, ‘Anwar Judgment Coming August 4’ (18 July 2000)
accessed 8 July 2008.
215 Ibid. Many hundreds of street protestors demanded his release as well as the resignation of Mahathir. They were kept away from the courthouse by riot police armed with assault guns.
216 Obendorf (n 4) 186.
217 Obendorf (n 4) 186.
218 –, ‘Anwar Jailed After Confessions’ (22 September 1998)
accessed 8 July 2008.
219 Obendorf (n 4) 186. Anwar alleged that he had been beaten unconscious while in police detention. While appearing in court at his arraignment on charges of corruption and sex charges, he showed the court and his wife bruises above his left eye and on his neck and body. He was refused medical treatment and was moved to solitary confinement. Neither his lawyers nor his family were allowed visitation rights during this period. After returning to court, Anwar was granted an appeal for an eye examination. The medical practitioner determined there was no permanent damage to his eye: Ranjan Roy, ‘Anwar Pleads Innocent in Malaysia’ (29 September 1998)
accessed 8 July 2008.
220 Ranjan Roy, ‘Anwar Pleads Innocent in Malaysia’ (29 September 1998)
accessed 8 July 2008. Anwar’s adopted brother, an Indonesian interior decorator pleaded guilty to having been a passive recipient of anal intercourse with Anwar in April 1998 as an expression of thanks for his assistance in securing him Malaysian citizenship. Another Pakistani resident of Malaysia, who was a speechwriter for Anwar, pleaded guilty under the threat of losing his job. In addition to these confessions (allegedly coerced), sixteen of Anwar’s supporters were jailed and more than 150 others were arrested during demonstrations while he was in detention: see –, ‘Anwar Charged with Sodomy’ (30 September 1998)
accessed 8 July 2008.
221 The corruption charges were allegedly related to a misuse of his ministerial powers to obstruct the police investigations into allegations that he had engaged in illegal homosexual misconduct: see Daily Express News, ‘Anwar Is Freed’ (30 September 2004)
accessed 8 July 2008.
222 The verdict in the sodomy trial was initially postponed. Sodomy charges in Malaysia normally carry a penalty sentence extending up to a possible 20 year prison term as well as lashings. Since Anwar was over 50, he was not subject to the lashings. See above n 58; see also –, ‘Anwar Convicted in Sodomy Plot’ (8 August 2000)
accessed 11 July 2008. Some critics have suggested the Malaysian High Court is comprised of judges who owe their fidelity to the Prime Minister rather than the rule of law. Some accused the court of acting as a Kangaroo Court to thwart Anwar from mounting a challenge politically against Prime Minister Mahathir in the general election: see Datalounge, ‘International Outcry Over Anwar Jail Term’ (9 August 2000)
accessed 8 July 2008.
224 Obendorf (n 4) 178.
225 Obendorf (n 4) 180.
226 Obendorf (n 4) 183.
227 Obendorf (n 4) 183-4.
228 Obendorf (n 4) 184.
229 Peter Hacker, ‘Malaysian Leader Attacks Gays and Western ‘Homo’ Media in National TV Speech’ (365gay.com, 2003),
accessed 8 July 2008.
230 –, ‘Malaysia Won’t Welcome Gay Officials’ (The Advocate, 2 November 2001)
accessed 8 July 2008.
231 Wu (n 59) 289.
232 Wu (n 59) 289.
233 Obendorf (n 4) 184.
234 Obendorf (n 4) 190. See also above n 41 and 43 and accompanying text.
235 Wu (n 59) 289. Obendorf (n 4) 190 citing Hage and others states the ‘fear of sameness “homoiophobia,”‘ arguing that ‘what is really feared here is not the otherness of the other but the other’s human sameness-not xenophobia but homoiophobia. … [T]he home of sodomy is always elsewhere: sodomy is always portrayed as incapable of domestication. Thus, painting the natural home of the sodomite as intrinsically external sheds light on many of the reasons given to justify Anwar[‘s] … removal from power. Many of these had to do with the incompatibility between Anwar’s supposed sodomitical identity and practice and his position as a Malaysian political and Islamic religious leader. It is possible to see how, through being labelled a sodomite, Anwar was effectively ‘else-whered’ – removed from both political life and, eventually, via public shaming and imprisonment, from everyday Malaysian life.’
236 –, ‘Anwar Convicted in Sodomy Plot’ (8 August 2000)
accessed 11 July 2008.
237 –, ‘Anwar Convicted in Sodomy Plot’ (8 August 2000)
accessed 11 July 2008.
238 Editorial, ‘Sordid Trial Shows Hypocrisy of Making Sexuality a Crime’ (Des Moines Register, 16 August 2000)
accessed 8 July 2008.
239 Obendorf (n 4) 191.
240 Obendorf (n 4) 191.
241 The Oxford English Dictionary (http://www.oed.com accessed 11 July 2008) defines homophobia as ‘Fear or hatred of homosexuals and homosexuality’. See also Flood and Hamilton (n 14) 1 who define homophobia as ‘the unreasoning fear or hatred of homosexuals and to anti-homosexual beliefs and prejudices’.
242 Mageswary Ramakrishnan, ‘Homosexuality is a Crime Worse than Murder’ (TIME Magazine, 2000)
accessed 8 July 2008.
243 Obendorf (n 4) 192. The name of the group was PASRAH (People’s Anti-Homosexual Volunteer Movement). As Obendorf explains: “Mahathir has been quick to conflate issues of Western cultural contamination, moral degeneracy, and economic decline with the existence of sodomy and the figure of the sodomite. The PASRAH statement itself is a child of that lineage-revealing some of the ways in which fears about external influences on Malaysian life can be attributed to as few as two instances of sodomy convictions’.
244 Obendorf (n 4) 190.
245 Obendorf (n 4) 191.
246 –, ‘Anwar Convicted in Sodomy Plot’ (8 August 2000)
accessed 11 July 2008. One of Anwar’s accusers was made the director of one company and later became an executive at a development firm. During the trial, this accuser (Azizan) was promoted to manager at the development firm and allowed to use a car during the actual trial. Ibid. The adopted brother of Anwar indicated police coerced him into confessing he had sex with Anwar: see –, ‘Witness Says Police Forced Anwar Charges’ (The Advocate, 9 February 2000)
accessed 8 July 2008.
247 –, ‘Anwar Convicted in Sodomy Plot’ (8 August 2000)
accessed 11 July 2008.
248 –, ‘Anwar Convicted in Sodomy Plot’ (8 August 2000)
accessed 11 July 2008.
249 Wu (n 59) 286.
250 Wu (n 59) 289.
251 Obendorf (n 4) 192.
252 Obendorf (n 4) 193 states: ‘The processes of public shaming, of open discussion of sexual immorality, and of supposedly private matters (both in terms of sexuality and leadership struggles between national leaders) being aired and resolved publicly have not been popular with Malaysian citizens. … Both the accuser and the accused may well have become subject to the metaphoric meanings that circulate around sodomy, labelled and defined as deviant, antipatriotic, and irreligious’.
253 –, ‘Anwar Convicted in Sodomy Plot’ (8 August 2000)
accessed 11 July 2008.
254 Obendorf (n 4) 194-7.
255 Wu (n 59) 286-7; See also –, ‘Anwar Is Freed’ (Daily Express News, 3 September 2004)
accessed 8 July 2008.
256 Wu (n 59) 286-7.
257 Meredith L Weiss, ‘Rejection as Freedom? HIV/AIDS Organizations and Identity’ (2006) 4 Perspectives on Politics 671, 673.
258 The World Health Organisation in mid-2005 noted that Malaysia was entering the ‘initial stage of an HIV epidemic’. The low figures for homosexual transmission in Malaysia have been doubted by some since many would remain in the closet to avoid the social unacceptability of homosexuality. Mahathir’s daughter, Marina Mahathir, has been at the forefront of leading the effort against HIV/AIDS in Malaysia. Though the gay community has been less affected possibly by the incidence and spread of HIV/AIDS than other groups, the gay community has taken command in measures designed to prevent the spread of the disease. The PT Foundation, an NGO, was founded initially to deal with the spread of HIV/AIDS in the gay community but has expanded over time to reach out to other groups, such as intravenous drug users. Weiss believes that NGOs are better equipped to dealing with the spread of HIV/AIDS because they are more likely to view it as greater than just a public health issue which must address the larger social milieu within which the disease exists, including an understanding of the effect of such disease in marginalizing groups within society: Weiss (n 308) 673-74. Weiss states: ‘Bureaucratic health agencies may find a more patient, nuanced approach, especially to gay sex hard to muster. HIV/AIDS organisations may sidestep concerns that stymie government initiatives while empowering communities in enduring ways. Activists not afraid to address the communities most at risk – not least because they themselves are often from them – may effectively fill the gaps left by squeamish public officials. In the process, these organisations assert the efficacy and self-sufficiency of civil society and the fallibility of government, while vindicating their right to organize, to mobilize, and to be openly part of what is, at least in some sense, an identity-based “community”‘: Weiss (n 257) 675
259 –, ‘Malaysian PM suffers election shock’ (8 March 2008)
accessed 1 April 2008; –, ‘Malaysian opposition scores upset’ (9 March 2008)
accessed 1 April 2008); –, ‘Malaysian accord aims to avert split’ (13 March 2008)
accessed 7 July 2008.
260 Some observers have concluded the election results reflected general dissatisfaction amongst Chinese and Indian minority groups in Malaysia resulting from grievances over religious discrimination and policies existing since 1971 that give preference to the majority Muslim Malays in education and in positions of government. Additionally, a majority of Malaysians have been dissatisfied with the ruling party because of increasing rates of crime and corruption. Anwar helped unify the opposition parties after their election triumph: see n 12 above. See also Andrew Harding, ‘The Rukunegara Amendments of 1971’ in Andrew Harding and HP Lee (eds), Constitutional Landmarks in Malaysia – The First 50 Years: 1957-2007 (Lexis Nexis, Singapore 2007) 120-2.
261 See Wu (n 59) 289-90 which outlines the issues of constitutional concern raised by the Anwar saga.
262 –, ‘Anwar Ibrahim files lawsuit against aide’ The Australian (30 June 2008)
accessed 7 July 2008 The head of the Criminal Investigation Department indicated one of Anwar’s assistants, who was employed by him in March 2008, filed a complaint alleging he had been sodomized by Anwar in a complex in a suburb located in an upper socio-economic area of Kuala Lumpur:. –, ‘Sodomy claim “desperate”: Anwar’ The Australian (30 June 2008)
accessed 7 July 2008. Anwar’s Peoples Justice Party allege the male aide has been acting under duress and photographs have been produced showing the male aide with three ministers in the current ruling government, including one an assistant to the Deputy Prime Minister Najib Razak: –, ‘Anwar takes refuge in Turkish embassy’ The Sydney Morning Herald (30 June 2008)
accessed 4 July 2008; –, ‘Malaysia’s deputy PM says met Anwar sodomy accuser’ Reuters (3 July 2008)
accessed 9 July 2008. Anwar has said the ruling elite were repeating practices of the past in an effort to discredit him. –, ‘Anwar Ibrahim won’t leave embassy until safety assured’ The Australian (30 June 2008)
accessed 30 June 2008; Hannah Beach, ‘Back to the Future’ TIME Magazine (3 July 2008)
accessed 9 July 2008.
263 –, ‘Sodomy charge a political spoiler: Ibrahim Anwar’ The Australian (1 July 2008)
accessed 2 July 2008.
264 –, ‘The trials of Anwar’ The Australian (1 July 2008)
accessed 2 July 2008. –, ‘Malaysia’s deputy PM says met Anwar sodomy accuser’ Reuters (3 July 2008)
accessed 9 July 2008.
265 –, ‘Anwar says charge derails poll plan’ The Sydney Morning Herald (Australia, 1 July 2008)
accessed 7 July 2008>.
266 –, ‘Sodomy claim “desperate”: Anwar’ The Australian (30 June 2008)
accessed 7 July 2008.
267 –, ‘Malaysia’s embattled Anwar comes out swinging’ The Sydney Morning Herald (Australia, 1 July 2008)
accessed 4 July 2008; –, ‘Anwar Ibrahim vows to seize power in Malaysia’ The Australian (3 July 2008)
accessed 4 July 2008; Lisa Murray, ‘Witnesses put pressure on Anwar’ The Sydney Morning Herald (8 July 2008)
accessed 9 July 2008.
268 –, ‘Malaysian PM Abdullah Badawi to step down in 2010’ The Australian (11 July 2008)
accessed 11 July 2008. A private detective working for one the accused murderers was allegedly told the deceased, who had had a sexual relationship with Mr Najib in the past, had engaged in acts of anal sex which would constitute a violation of the sodomy laws in Malaysia, which are non-gender specific: see John Berthelsen, ‘Malaysia’s Legal Pursuit of Anwar Ibrahim is destroying the Country’s reputation’ (1 August 2008)
accessed 27 August 2008.
270 Liau Y-Sing, ‘Malaysia’s Anwar snubs police, risks arrest’ Reuters (14 July 2008)
accessed 27 August 2008.
271 Alan Ting, ‘Anwar ups ante, takes battle to next level’ (31 July 2008)
accessed 27 August 2008.
272 –, ‘Anwar Ibrahim charged with sodomy’ (7 August 2008)
accessed 27 August 2008.
274 See above n 267 A more recent poll suggested that nearly 60% of respondents in Anwar’s electorate of Permatang Pauh believed the allegations of sodomy were politically inspired: –, ‘Anwar “on track” after landslide win’ The Australian (27 August 2008)
accessed 28 August 2008.
275 See ‘Latest news from Permatang Pauh’ Malaysia Today (26 August 2008)
accessed 28 August 2008. Note especially the comment at 3.45pm.
276 –, ‘Anwar sworn in as MP (updated)’ (28 August 2008)
accessed 29 August 2008.
277 Jalil Hamid, ‘Anwar’s Malaysia election win boosts push for power’ Reuters (26 August 2008)
accessed 27 August 2008.
278 See above n 264.
279 See above n 268.
280 Mathews Thomas, ‘Is Malaysia’s Mykad The “One Card To Rule Them All”? The Urgent Need To Develop A Proper Legal Framework For The Protection Of Personal Information In Malaysia,’ (2004) 28 Melb. U. L. Rev. 474, 475.
281 Thomas (n 280) 486, 510-11.
282 Thio (n 201) 433-4.
283 See Articles 10(1)(c) and 8(1) Federal Constitution of Malaysia.
284 See above n 97-118 and accompanying text.
285 A prime illustration of this was the Marbury v Madison case (5 US (1 Cranch) 137 (1803) (US Supreme Court)) which entrenched judicial review. One hundred years later, the drafters of the Australian Constitution were heavily influenced by this landmark US Supreme Court case; judicial review was assumed to be part of the constitutional structure of government set up by the founders of the Australian federation: see Australian Communist Party v Commonwealth (1951) 83 CLR 1, 262 (Fullagar J) (High Court of Australia).
286 See above n 37. Reliance on these foreign legal materials was not uniformly embraced by all members of the US Supreme Court. Indeed, such reference provoked much criticism by other members of the Bench. See the dissenting judgments in Lawrence v Texas (n 2), especially Thomas at 605-6.
287 Thio (n 201) 437, 517.
288 Justice Bertil Wennergren found the sodomy laws of Tasmania violated Article 26 (the equal protection provision) of the ICCPR because the Tasmanian sodomy laws proscribed sexual activity between consenting males without prohibiting such activities between consenting women. Men are therefore not treated equally before the law: Toonen v Australia (n 132) Appendix (Individual Opinion submitted by Mr Bertil Wennergren).
289 Thio (n 201) 516.
290 Singapore Parliamentary Debates, Volume 83, Column 2242 (22 October 2007). Debate on the Penal Code (Amendment) Bill; speech of Dr Thio Li-Ann (Nominated Member).
292 Thio (n 201) 517.
293 The racial riots were used to justify restrictions on civil and political rights in Malaysia, with the reasoning that free speech or assembly could worsen the racial situation. Parliament has often amended the Constitution in Malaysia to make it easier to maintain parliamentary dominance. Nonetheless, the recent elections in Malaysia reflect the plural nature of Malaysia. Cyrus Das, ‘The May 13th Riots and Emergency Rule’ in Andrew Harding and HP Lee (eds), Constitutional Landmarks in Malaysia – The First 50 Years: 1957-2007 (Lexis Nexis, Singapore 2007) 103-113.
294 See n 5 above.
295 Graziadei (n 28) 455-463.
296 Long (n 7).
297 See n 9, 129 above.
298 See n 34 above.
299 Flood and Hamilton (n 14).
300 Berns and Berman (n 32) 107-8.
301 See n 183 above.
302 Kirby (n 9).
303 See Berman (n 5) 291-2, citing Quentin-Baxter, ‘International Protection of Human Rights’ in Kenneth Keith (ed) Essays on Human Rights (1968) 144-5; Kirby (n 9).
304 Kirby (n 9).
305 Graziadei (n 28) 455-6.
306 Kirby (n 9).
307 See Part III D above.
308 See above n 264.
309 Long (n 7) 2.
310 Dannemann (n 15) 392.
311 See Lawrence v Texas (n 2) 567-72; See also Michel Foucault, The History of Sexuality Volume 1: An Introduction (Vintage Books edition, 1990), 43 (cited in Morgan (n 31), 9 n 24).
312 Watt (n 18) 595, 598. See also Berman (n 43) 741 who asserts that comparative legal methodology must delve into the impact of religion on the development of law in both Western countries (in which the majority of the population is Christian) and non-Western countries (in which the majority of the population is mostly Muslim). [See above.] In a 2003-2004 survey conducted in Australia, Catholics and individuals affiliated with the Anglican and Uniting Churches as well as other religions were found to be the most tolerant of homosexuality. The authors concluded that these findings are ‘counter-intuitive’: Flood and Hamilton (n 14) 13-14.
313 Watt (n 18) 604.
314 Watt (n 18) 605.
315 Long (n 7) 17.
316 Watt (n 18) 581; Cotterrell (n 1) 731; Long (n 7)
317 Cotterrell (n 1) 731.
318 See n 48 above.
320 –, ‘Anwar Ibrahim files lawsuit against aide’ The Australian (30 June 2008)
accessed 7 July 2008.
321 Long (n 7) 2.
322 Long (n 7) 17.
323 Long (n 7) 3.
324 Cotterrell (n 1) 726. See also Long (n 7) 16-17 who aptly notes: ‘When a culture is reinvented for ideological purposes as a faceless, seamless whole-incapable of dissent from within, so that any dissenter automatically becomes an outsider, incapable of changing, so that growth seems like destruction-it has ceased to be an environment in which people can live and interpret their lives. It has become a rhetorical weapon to be wielded against individuals, a tool of repression’.
325 Baden Offord, ‘The Apartheid of Homosexuality’ (Article, 1999)
accessed 8 July 2008.
326 See Long (n 7); Flood and Hamilton (n 14).
327 Morgan (n 31) 43 (quoting Berns) reminds us that we must be aware of what terms, such as equal protection of the laws actually mean in actual situations: ‘Terms such as … equality resonate with meaning only when and to the extent that they are situated within concrete narratives, narratives which lay bare the history, the structures and the values which sustain and support them. We must know, not only whose story it is that is told but from what position the narrator speaks.’
328 See above n 155; Fitzgerald (n 147).
329 See above n 158 and 160.
331 See Todd (n 160).
332 Long (n 7); Flood and Hamilton (n 14).
333 Berman (n 17) fns 196-197 and accompanying text.
334 See n 161 above.
335 Joseph (n 56) 397-8.
336 See Morgan (n 31) 43.
337 Berman (n 5) 318, fns 160 and 161 and accompanying text.
339 Justice Michael Kirby, ‘Fundamental Human Rights and Religious Apostasy’ (The Griffith Lecture 2007, Queensland Conservatorium, Griffith University, Friday 16 November 2007)
accessed 10 July 2008.
340 Long (n 7) 17.
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